Citation Nr: 1337296 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-33 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for squamous cell carcinoma, base of tongue. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Lincoln, Nebraska, in which the RO determined that new and material evidence sufficient to reopen a previously denied claim for service connection for squamous cell carcinoma, base of tongue had not been received. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claim file and the electronic claim file in rendering this decision. FINDINGS OF FACT 1. A July 2005 rating decision that denied service connection for squamous cell carcinoma, base of tongue on the basis that it was not incurred in or aggravated by service, was not timely appealed. The Veteran was notified of that decision in August 2005. 2. Evidence received since the July 2005 rating decision does not raise a reasonable possibility of substantiating the claim of service connection for squamous cell carcinoma, base of tongue CONCLUSIONS OF LAW 1. The July 2005 RO decision that denied an application to reopen the claim of entitlement to service connection squamous cell carcinoma, base of tongue is final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. New and material evidence sufficient to reopen the claim of service connection for squamous cell carcinoma, base of tongue has not been submitted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) held that with regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then send a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. Id. The RO provided a VCAA notice by letter dated in August 2011. The Veteran was notified that his claim had been previously denied, and that new and material evidence was needed to substantiate the claim to reopen, and described what would constitute such new and material evidence. The letter also specifically explained the bases of the prior denial on the merits, and directed the Veteran to submit any new and material evidence showing that his squamous cell carcinoma is related to service. This letter was fully compliant with the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. The VCAA left intact the requirement that a veteran must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in the provisions of 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A(f) (West 2002). As discussed below, the Veteran has not submitted new and material evidence to reopen the claim, and thus an examination is not warranted. Additionally, the Veteran has declined the opportunity to present personal testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Claim to Reopen In a July 2005 rating decision, the RO denied service connection for squamous cell carcinoma, base of tongue. Notice of that decision was mailed in August 2005. 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 earlier. Although the Veteran filed a notice of disagreement with this rating decision, he did not perfect his appeal by timely filing a substantive appeal (VA Form 9 or equivalent form) in response to the July 2006 statement of the case (SOC). Correspondence dated in November 2006 notified the Veteran that his VA Form 9 was not filed 60 days from the mailing of the SOC or the remainder of the one year period of the date of mailing of the notice of the determination being appealed. The letter advised the Veteran that he could appeal the RO's decision as to the untimeleness of his VA Form 9, and a notice of appellate rights was provided. However, no response was received from the Veteran. Accordingly, the Board finds that the July 2005 decision is final because the Veteran did not file a timely appeal. See 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). The claim of entitlement to service connection for squamous cell carcinoma, base of tongue may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002); 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) (2013). In this regard, in the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (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. In July 2005, the RO denied the Veteran's claim for service connection, finding that the condition did not happen in military service, nor was it aggravated or caused by service. The evidence before VA at the time of the prior final decision consisted of the Veteran's service treatment records (STRs) and post-service medical records as well as the Veteran's statements. The STRs do not reflect treatment for, or complaints associated with, squamous cell carcinoma, base of tongue. In the July 1969 Report of Medical History, the Veteran indicated that he did have at one time a tumor, growth, cyst, or cancer, but the July 1969 Report of Medical Examination indicated a normal clinical evaluation of the mouth and throat. The Veteran's post-service medical records indicate that he had been diagnosed with squamous cell carcinoma of the neck. Since filing to reopen his claim, additional VA treatment records have been received. Such records simply state that the Veteran had follow up visits, and indicate the results of physical examinations, but do not otherwise indicate that the Veteran's condition occurred in or was aggravated by service. The Veteran did not submit or identify any additional medical evidence to substantiate his claim that such disability is related to service. As to the Veteran's own statements, these merely reiterate his contention that his squamous cell carcinoma is related to herbicide exposure in service, and such assertions were already of record at the time of the last final denial. The Board recognizes that, shortly after the July 2005 rating decision, the Veteran submitted additional treatment records as well as a statement from Dr. L., a physician who treated him for his squamous cell carcinoma. In this letter, Dr. L. indicated that herbicides could potentially be an etiological factor in the development of his squamous cell carcinoma. Significantly, although this evidence was received after the July 2005 rating decision, it was considered and discussed by the RO in the July 2006 Statement of the Case. As such, and because the Veteran failed to perfect his appeal at the time, the Board finds that such evidence is appropriately considered as having been of record at the time of the last final denial. In summary, the Board finds that the evidence received since the last final decision is largely cumulative of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim. Without such evidence, the claim for service connection for squamous cell carcinoma, base of tongue cannot be reopened. See 38 C.F.R. § 3.156 (a) (2013). ORDER The application to reopen a claim of service connection for squamous cell carcinoma, base of tongue is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs