Citation Nr: 1335480 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-05 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a blood disorder, to include polycythemia or myelofibrosis. REPRESENTATION Appellant represented by: Jeffrey E. Marion, Attorney at Law ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are no additional treatment records among the Veteran's paperless records in Virtual VA or VBMS. FINDINGS OF FACT 1. In an unappealed December 2006 rating decision, the RO denied a claim of entitlement to service connection for a blood disorder, including myeloid metaplasia and myelofibroma. 2. The evidence received since the December 2006 rating decision as to a blood disorder is cumulative and redundant of the evidence filed in connection with the August 2006 claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for a blood disorder, to include polycythemia or myelofibrosis. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002); 38 C.F.R.§§ 3.156, 3.159, 19.32, 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.156(a), 3.159, 3.326(a). The VCAA provides that VA will notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. Specific to requests to reopen, the claimant must be notified of the criteria required to reopen the claim and the criteria for establishing the underlying claim for service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VA satisfied its duty to notify the Veteran. The record reflects that following the Veteran's April 2011 claim and prior to the adjudication of that claim in September 2011, the RO mailed the Veteran a letter in August 2011 advising him of the need for new and material evidence in previously denied claims. The letter also provided the Veteran with appropriate notice with respect to the specific bases of the December 2006 denial of service connection for a blood disorder to include polycythemia or myelofibrosis. This August 2011 notice satisfied VA's duty to notify the Veteran. The Duty to Assist The VCAA further creates a duty to assist Veterans with the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and private treatment records with the file with the file. The Veteran has not identified any other relevant treatment records for the RO to assist him in obtaining. Thus the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. 38 U.S.C.A §5103A(d) finally includes a duty to provide the claimant with a VA examination when such medical information is necessary to make a decision on the claim. However, in this decision, the Board finds no new and material evidence sufficient to substantiate the claim, and therefore declines to reopen the claim for service connection for a blood disorder. In this absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1342-1343 (Fed. Cir. 2003). In light of this disposition, the Board finds that there is no duty to provide a VA examination in this case as part of the VA's duty to assist. II. The Merits of the Claim New and Material Evidence The Veteran seeks service connection for a blood disorder to include polycythemia or myelofibrosis. In a December 2006 rating decision, the RO previously considered and denied the Veteran's August 2006 claim for service connection for a blood disorder to include myeloid metaplasia and myelofibroma. He did not perfect an appeal of that decision, and it became final. 38 U.S.C.A. § 7105(d)(3), 38 C.F.R. §§ 19.32, 20.1103. Therefore, his claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156(a). In this case, the Veteran has not submitted new and material evidence sufficient to reopen the claim. The RO declined to reopen the previously denied claim in the September 2011 rating decision on appeal. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board must preliminarily decide that new and material evidence has been presented in a case, before addressing the merits of the claim Butler v. Brown, 9 Vet. App. 167, 171 (1996). Therefore, the Board must consider the question of whether new and material evidence has been received. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. Shade v. Shinseki has significantly relaxed the standard of raising a reasonable possibility of substantiating the claim. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination on whether the submitted evidence meets the definition of new and material evidence, the Board takes cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying the concepts derived from the VCAA. Id. at 118. Moreover, the Veteran need not present evidence as to each previously unproven element of a claim. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant to submit medical nexus evidence when he has provided new and material evidence as to another missing element). At the time of the December 2006 rating decision that denied service connection for a blood disorder, the evidence of record consisted of the Veteran's August 1992 to July 2006 private treatment records, his service treatment records, and his own lay statements asserting his belief that in-service exposure to benzenes and other chemicals has caused his blood disorder. The RO noted a June 1999 bone marrow study showing myelofibrosis. The RO also noted the Veteran's lay reports as to in-service exposure to benzenes and other chemicals, but denied service connected as there is no presumptive provision for service connection based on in-service benzene exposure. The RO further found no in-service treatment or diagnosis for a blood disorder to include polycythemia or myelofibrosis, and denied the claim without evidence as to a nexus between his service and current diagnosis. The Veteran filed internet research on the risks associated with exposure to chemicals such as benzenes, specifically as it pertains to the development of blood and bone marrow disease, during the appellate period stemming from the December 2006 rating decision. The VA must treat new and material evidence as if it were filed in connection with the pending claim, and assess any evidence submitted during the relevant period. Bond v. Shinseki, 659 F.3d 1362 (2011). The RO reviewed the Veteran's internet research in connection with the August 2006 claim in a December 2007 statement of the case. The appellate period ended 60 days following that statement of the case in February 2008, and the December 2006 rating decision became final. 38 C.F.R. § 19.32 Subsequent to February 2008, the Veteran submitted a further lay statement with his April 2011 claim to reopen, attesting to in-service exposure to chemicals such as benzenes. For the purpose of establishing whether new and material evidence has been received, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, this statement must be considered credible. The April 2011 lay statement filed in connection with the Veteran's claim to reopen is cumulative and redundant of the August 2006 lay statements filed with his original claim of entitlement to service connection for a blood disorder to include myeloid metaplasia or myelofibroma. "New" evidence is not that which is merely cumulative of other evidence on the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Both the August 2006 and April 2011 statements describe the Veteran's in-service exposure to benzenes and other chemicals, and assert that this in-service chemical exposure has caused his current blood disorder. This April 2011 statement concerning causation is duplicative of his earlier August 2006 statements, which the RO considered in the final December 2006 rating decision. 38 C.F.R. § 3.156(a). There is no new argument, assertion, or evidence in this April 2011 statement; and the Veteran filed no other evidence or statement in support of his April 2011 claim. Therefore the April 2011 statement is not "new" evidence sufficient to reopen the claim. The Veteran's representative argued in the March 2012 substantive appeal that the August 2006 claim was for service connection of myeloid metaplasia and myelofibroma, but that the current appeal is a separate claim based on the diagnoses of polycythemia vera and myelofibrosis. The Board acknowledges that claims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims. Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008). The "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. Id, at 1334. Absent a claim of clear and unmistakable error, a Veteran must present new and material evidence to support any claim for service connection that rests upon the same factual basis as an earlier claim that has been denied. Id. However, the Veteran's private treatment records, which were of record prior to the December 2006 rating decision, show all the relevant diagnoses at the time of that final decision. An August 1992 bone marrow biopsy shows polycythemia vera, a June 1999 bone marrow study shows agnogenic myeloid metaplasia (myelofibrosis), a January 2003 CT scan shows myelofibrosis, an August 2005 bone scan shows history of polycythemia, and February 2006 and July 2006 treatment records from Oklahoma Oncology show diagnosis for agnogenic myeloid metaplasia with myelofibrosis. As a factual matter, the diagnoses in this case have not changed. The medical evidence of record at the time of the August 2006 claim and December 2006 rating decision shows diagnoses for polycythemia and myelofibrosis, and the December 2006 rating decision considered that medical evidence and these diagnoses. As the present claim includes the same diagnoses and factual bases as the RO considered in the prior decision, the threshold question of whether new and material evidence has been submitted must still be addressed. Glynn v. Brown, 6 Vet. App. 523, 527 (1994). The Veteran has filed no new evidence showing any separate and distinct diagnoses in connection with his April 2011 claim. Therefore, the April 2011 claim and the August 2006 claim are claims based on the same factual bases. In the March 2012 substantive appeal, the Veteran's representative also argued that the RO misapplied the doctrine of reasonable doubt as stated at 38 C.F.R. § 3.102, and failed to provide assistance under 38 C.F.R. § 3.159. As mentioned above, in the absence of new and material evidence, the VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim under 38 C.F.R. § 3.159. Paralyzed Veterans of America, 345 F.3d 1334, 1342-1343. The Veteran's representative has also failed to identify what assistance the RO should have provided. Further, because the Veteran has not fulfilled his threshold burden of submitting new and material evidence, the benefit of the doubt doctrine does not need to be applied in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); See also Gilbert v. Derwinski,1. Vet. App. 49, 55 (1990) (noting the limitations of the benefit of the doubt doctrine). The Veteran's representative finally argued for consideration of direct service connection under 38 C.F.R. §3.303 and 3.304, and presumptive service connection under 38 C.F.R. § 3.307 and 3.309. However, these are merits based arguments, which cannot be considered until the claim has been reopened with new and material evidence. The Board cannot even consider, must less decide the merits of a previously adjudicated claim once it finds new and material evidence lacking. Woehlaert v. Nicholson, 21 Vet. App. 456, 461 (2007) (quoting Butler 9 Vet. App. at 171). In addition, the RO, in December 2006 decision, denied the claim on the basis of no nexus between service connection and the diagnosis and no presumptive provision. Finally, a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim. Boggs, 520 F.3d 1336-1337. Therefore, consideration for either direct or presumptive service connection would require first reopening the claim with new and material evidence. Based upon the discussion above, the Board finds that the additional evidence received since the December 2006 rating decision is cumulative and redundant of the evidence filed in connection with the August 2006 claim. There is no indication that this evidence raises a reasonable possibility of substantiating the claim. ORDER As new and material evidence has not been received to reopen the claim of entitlement to service connection for a blood disorder, to include polycythemia or myelofibrosis, the appeal is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs