Citation Nr: 1336652 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-16 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an inguinal hernia. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left eye corneal abrasion and hematoma of the conjunctiva. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. 6. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a condition claimed as "nervous stomach." 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a heart condition, to include as secondary to diabetes mellitus. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hyperhidrosis, to include as secondary to diabetes mellitus. 9. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a depressive psychiatric disorder, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to November 1967, from February 1991 to March 1991, and from January 28 to 30, 2002. The Veteran has 29 years of National Guard service, with additional periods of active duty and inactive duty for training. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The May 2009 rating decision addressed the Veteran's claims relating to a heart disorder, hyperhidrosis, and depression as service connection claims on a secondary basis. A February 1971 rating decision denied entitlement to a nervous condition, diagnosed as psychoneurosis depressive reaction with anxiety features. A July 2007 rating decision denied entitlement to service connection for a heart disorder and hyperhidrosis. The RO addressed the claims as service connection claims (as opposed to claims to reopen) in the May 2009 decision because the Veteran claimed secondary service connection due to diabetes mellitus. Despite the RO addressing the claims on a direct basis, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The secondary service connection theory of causation was not addressed by the RO in the 1971 and 2007 final rating decisions. However, a claim based on a new theory of entitlement is not a new claim, but constitutes a claim to reopen the previously denied claim. Ashford v. Brown, 10 Vet. App. 120 (1997). A new theory of causation for service connection for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim but rather is regarded as a claim to reopen the previously denied claim, and if the evidence supporting the new theory of causation constitutes new and material evidence, then VA must reopen the claim. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); see also Robinson v. Peake, 21 Vet. App. 545, 550 (2008), citing Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd, 421 F.3d 426, 1346, 1349 (Fed. Cir. 2005) (noting that a final denial on one theory is a final denial on all theories). Therefore, new and material evidence is required to reopen the issues of entitlement to service connection for a heart condition, hyperhidrosis and an acquired psychiatric disorder. The Board notes that the Veteran's current psychiatric claim was specifically a claim of entitlement to service connection for depression, to include as due to diabetes mellitus. A Court of Appeals for Veterans Claims (Court) decision held that VA must consider whether the Veteran's psychiatric symptoms regardless of the label attached to them warrant service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The evidence of record reflects that the Veteran has been diagnosed with "psychoneurosis, depressive reaction with anxiety features." The RO noted the Veteran's prior denials for a nervous condition in the November 2008 notification letter. As the Veteran's new claim for secondary service connection is for depression, and he was previously denied for a depressive psychiatric disorder, the Board has characterized the issue as whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a depressive psychiatric disorder, to include as secondary to diabetes mellitus. The issue of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for a left eye disorder, heart condition and hyperhidrosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed October 1973 decision, the RO denied entitlement to service connection for depressive reaction with anxiety features. 2. Evidence received after the October 1973 decision includes evidence that is either cumulative or redundant, does not relate to unestablished facts necessary to substantiate the claim for service connection for an acquired psychiatric disorder, and does not raise a reasonable possibility of substantiating the claim. 3. In an unappealed July 2007 rating decision, the RO denied entitlement to service connection for diabetes mellitus, an inguinal hernia, bilateral hearing loss, bilateral tinnitus, and a "nervous stomach." 4. Evidence received after the July 2007 decision includes evidence that is either cumulative or redundant, does not relate to unestablished facts necessary to substantiate the claims for service connection service connection for diabetes mellitus, an inguinal hernia, bilateral hearing loss, bilateral tinnitus, and a "nervous stomach" and does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The October 1973 denial of entitlement to service connection for depressive reaction with anxiety features is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1973). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a depressive psychiatric disorder, to include as secondary to diabetes mellitus. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2013). 3. The RO's July 2007 denials of service connection for diabetes mellitus, an inguinal hernia, bilateral hearing loss, bilateral tinnitus, and a "nervous stomach" are final. 38 U.S.C.A. § 7105(c) (West 2002); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 4. New and material evidence has not been received to reopen the claims of entitlement to service connection for diabetes mellitus, an inguinal hernia, bilateral hearing loss, bilateral tinnitus, and a "nervous stomach." 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Through a November 2008 letter, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claims. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him obtain evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. Concerning new and material evidence, the Veteran was adequately advised of the bases for the previous denials of his service-connection claims (tinnitus, hearing loss, nervous stomach, hernia, diabetes mellitus and psychoneurosis depressive reaction with anxiety features) in the November 2008 letter, so that he could determine what evidence would be new and material to reopen the claim, as is required by Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. In regard to the Veteran's claims to reopen, VA's responsibility extends to requesting relevant evidence from any new source identified by the Veteran, and if that evidence is not new and material, the claim is not reopened, and VA has no further duties to the Veteran with respect to that particular claim. The RO has obtained copies of the service treatment records and VA treatment records. The Veteran has not indicated that there is additional evidence for VA to obtain; nor has he submitted such evidence. VA does not have a duty to obtain a medical opinion if the claim is not reopened. 38 U.S.C.A. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). Since no new and material evidence has been submitted in conjunction with the recent claim, a new medical opinion is not required. Thus, VA has satisfied the duty to assist the Veteran. Given these facts, it appears that all available records have been obtained and all necessary development has been undertaken. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). New and Material Evidence In a January 1971 rating decision, the RO denied entitlement to service connection for psychoneurosis depressive reaction with anxiety features. He was notified of the decision in February 1971. In April 1971, he submitted a timely notice of disagreement with the January 1971 decision. The RO issued a Statement of the Case in May 1971, continuing the denial of entitlement to service connection for depressive disorder with anxiety features. The Veteran did not file a timely substantive appeal to the Board. In September 1973, the Veteran filed a claim of entitlement to service connection for a nervous disorder. In an October 1973 letter, the RO continued the denial of entitlement to service connection for a nervous disorder because his personality condition is a constitutional or developmental condition, and his nervous condition was not incurred in or aggravated by service. In January 2007, the Veteran filed a claim for diabetes mellitus, an inguinal hernia, bilateral hearing loss, bilateral tinnitus, and a "nervous stomach." In a July 2007 rating decision, the RO denied entitlement to service connection for these disabilities. The Veteran was informed of this denial in July 2007, but he did not file a timely appeal. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, 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. The May 1971, October 1973, and July 2007 decisions are final because the Veteran did not file timely appeals with respect to the decisions. 38 U.S.C.A. § 7105 (c); 38 C.F.R. §§ 3.104 , 20.302, 20.1103. The service connection claims may be reopened only if new and material evidence is submitted. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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). In Shade v. Shinseki, 24 Vet. App. 110 (2010), 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. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. With respect to the Veteran's psychiatric claim, the relevant evidence at the time of the October 1973 decision included the Veteran's service treatment records for his first period of active service from 1965 to 1967 and a November 1970 VA examination. In the May 1971 decision, the RO found that the Veteran had not been treated for a psychiatric disorder during his first period of active service, and that his later treatment for a personality defect was a constitutional or developmental abnormality not recognized as a disability under the law. Lastly, the RO found that the Veteran's diagnosis of depressive reaction with anxiety features was made three years after discharge from service, and was not related to service. The October 1973 letter repeated these findings. Evidence added to the claims file after the October 1973 decision includes National Guard records, VA treatment records, and private treatment records. The Veteran's National Guard records include periodic evaluations. In July 1988, December 1992, and October 1997, he denied depression or excessive worry and had a normal psychiatric evaluation. In March 2002, the Veteran denied nervous trouble of any sort and had a normal psychiatric evaluation. To the extent that the evidence received since October 1973 was not previously considered, and is not cumulative or redundant, it is new. The newly submitted evidence, however, is not material because it does not raise a reasonable possibility of substantiating the claim. That is, the new evidence does not relate a psychiatric diagnosis to an active period of service, does not show a psychiatric diagnosis with symptoms to a compensable degree within a presumptive period, and does not show aggravation of a psychiatric diagnosis due to service. Accordingly, new and material evidence has not been submitted for the Veteran's previously denied psychiatric claim. Regarding the remaining claims, the relevant evidence before the VA at the time of the July 2007 final decision included service treatment records, National Guard records, a VA hearing loss examination, and a July 2005 private treatment record where the Veteran denied tinnitus. Evidence provided since the July 2007 final decision included duplicates of National Guard records already in the claims file and statements from the Veteran. In August 2009, the Veteran argued that the VA did not have all of his periods of active Air Force and Air National Guard service listed in their system. The Veteran then provided evidence of his active service from January 28 to 30, 2002. The Board notes that the May 2009 rating decision failed to list the Veteran's service from January 28 to 30, 2002 on the introduction to the rating decision. However, the July 2007 rating decision which initially denied the claims does list the January 28 to 30, 2002 active service period. The Veteran's dates of active service, therefore, were before the VA at the time of the July 2007 rating decision. And the evidence the Veteran provided of his active service dates are not material because his correct active service dates were known at the time of the initial denials. The Veteran's diabetes mellitus was denied service connection in 2007 because the evidence did not show that his diabetes mellitus occurred in or was caused by active service. Additionally, the evidence did not show that the Veteran had compensably disabling diabetes mellitus within one year of discharge from a period of active service of 90 days or greater. The evidence added to the claims file regarding diabetes mellitus included an April 2002 private medical record regarding the Veteran's new onset diabetes. He was noted to be in the "Reserves" and to have recently undergone a physical which found "sugar in his urine." The Board notes that the claims file already contained the March 2002 laboratory results and physical which is referred to in the April 2002 private medical record. The Board notes that the Veteran had 3 days of service in January 2002 and was diagnosed with diabetes mellitus in March 2002. However, the presumptive service connection criteria for chronic diseases under 38 C.F.R. § 3.307(a)(1) requires that the presumption apply to periods of service lasting 90 days or more. Thus, this medical record is not material evidence as it does not show that the Veteran's diabetes mellitus began during a period of active service, or was compensably disabling within one year of discharge from his period of service from 1965 to 1967 (his only period of active service for 90 days or greater). In July 2007, the Veteran's claims of entitlement to service connection for an inguinal hernia and a "nervous stomach" were denied because the evidence of record did not include current diagnoses of an inguinal hernia or any chronic stomach or digestive disorder. Evidence added since the July 2007 rating decision did not include medical evidence relating to an inguinal hernia or a stomach or digestive disorder. Thus, no new and material evidence has been submitted. In July 2007, the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus were denied because there was no evidence of tinnitus or hearing loss during active service and no evidence of a nexus between current tinnitus and bilateral hearing loss and service. The Veteran was afforded a VA examination in July 2007, and the examiner provided a negative nexus opinion. The Veteran has not submitted any additional medical evidence related to his claims of entitlement to service connection for hearing loss and tinnitus since the 2007 denial. He reported on his claim to reopen that his bilateral hearing loss was diagnosed in 2003. And he stated "tinnitus with constantly ringing in my ears, left especially." This statement does not provide any information regarding onset or ongoing symptoms. To the extent that the evidence received since July 2007 was not previously considered, and is not cumulative or redundant, it is new (the private medical record from April 2004 and the Veteran's statement that his hearing loss was diagnosed in 2003). The newly submitted evidence, however, is not material because it does not raise a reasonable possibility of substantiating the claim. That is, the new evidence does not relate diabetes mellitus to an active period of service or a diagnosis within a presumptive period, and does not relate hearing loss to a period of active service or provide a positive nexus between hearing loss and service. Because appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen his claims, the benefit of the doubt doctrine cannot be applied in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Board notes that the claim to reopen left eye injury residuals is being remanded for additional development; however, this specific development is distinguishable from the new and material claims which are denied in this decision. Specifically, the claim is being remanded for records regarding the Veteran's ACDUTRA and INACDUTRA dates in June 1980. The new and material claims above will not be affected by the addition of any ACDUTRA or INACDUTRA dates from the 1980s. The ACDUTRA and INACDUTRA dates for 2002 and 2003 when the Veteran was diagnosed with diabetes mellitus and hearing loss are contained in the record. The addition of training dates does not affect the claims for an inguinal hernia and stomach disorder because the evidence continues to show that the Veteran does not have current disabilities, and this information is the basis for his prior denials. The Veteran's claims for tinnitus and a psychiatric disorder were denied due to a lack of positive medical nexus evidence, which also will not be affected by the addition of training dates. As the Veteran claims his left eye disability was caused by an injury in June 1980, the addition of any information regarding ACDUTRA or INACDUTRA dates from this period will be pertinent to his claim. The Board notes that the record contains information on duty dates from 1994 to 2003. All active duty dates (as differentiated from ACDUTRA and INACDUTRA dates) have been verified. ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for diabetes mellitus is denied. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for an inguinal hernia is denied. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for tinnitus is denied. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for a "nervous stomach" is denied. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for a depressive psychiatric disorder, to include as secondary to diabetes mellitus, is denied. REMAND Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Active military, naval, and air service includes active duty, any period of active duty for training (ADCUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 C.F.R. § 3.6(a). As noted above, the ACDUTRA and INACDUTRA dates contained in the claims file are from 1994 to 2003. The medical evidence shows the Veteran injured his left eye in June 1980, and he contends that it was on a period of ACDUTRA or INACDUTRA. Therefore, those periods for June 1980 must be confirmed. As noted in the introduction, the Veteran's claims of entitlement to service connection for a heart condition and hyperhidrosis, to include as secondary to diabetes mellitus, are claims to reopen. While the November 2008 VCAA letter provided proper notice for the new and material evidence claims decided above, pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the claims to reopen a heart condition and hyperhidrosis were not addressed. The Veteran must be provided notice of the bases for the prior denials in the prior 2007 decision and what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter must describe the basis of the previous denial of the Veteran's service connection claims for a heart condition and hyperhidrosis, as well as the evidence necessary to substantiate the element or elements of service connection found to be unsubstantiated in the previous denial. The letter should also notify the Veteran of what constitutes both "new" and "material" evidence to reopen the previously denied claim. 2. Determine the Veteran's ACDUTRA and INACDUTRA dates for the year 1980 (specifically June 1980) and associate the evidence with the claims file. 3. Then, re-adjudicate the claims on appeal. If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs