Citation Nr: 1338848 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-22 346 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for hemorrhoids. 2. Whether new and material evidence has been received to reopen the claim of service connection for hypertension. 3. Whether new and material evidence has been received to reopen the claim of service connection for prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from February 1953 to February 1955. The appellant claims as his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the RO. By way of history, the RO initially denied the claims of service connection in an April 1997 rating decision. The Veteran timely appealed, and in November 1998, the Board denied service connection on the basis that the Veteran had not submitted well-grounded claims. The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted as Public Law No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The new statute eliminated the concept of a well-grounded claim. In May 2001, the Court vacated the November 1998 decision and remanded the case for readjudication in light of VCAA. By way of an August 2002 decision, the Board readjudicated the issues of service connection and denied all three claims on the merits. In January 2011, the Board remanded the cases to the RO for further evidentiary development, specifically to obtain Social Security Administration (SSA) records and VA treatment records. The Board notes that proper development has been undertaken and such records have been since associated with the casefile. Unfortunately, during the pendency of the appeal, the Veteran died in November 2011. In November 2011, VA received the appellant's Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits (VA Form 21-534). In May 2012, VA sent the appellant a notice letter regarding her VA Form 21-534 application and notified her of 38 U.S.C.A. § 5121A -- the relationship of accrued benefits to substitution in case of death of claimant, the manner of substitution request and claims processing for an eligible survivor, and benefits to which substitution applies. In the January 2013 Supplemental Statement of the Case (SSOC), the appellant was notified that her VA Form 21-534 was accepted as a valid request for substitution. Thus, the Board acknowledges that proper substitution of claimant has been made and will proceed with consideration of the issues on appeal. A review of the Veterans Benefits Management System (VBMS) reveals no documents. A review of the Virtual VA paperless claims processing system reveals some pertinent documents, most of which have been printed out and associated with the paperfile. It also reveals VA treatment records dating from January 2011 to November 2011 that have not been previously considered by the RO at first instance (no waiver in the record). However, the Board notes that these VA treatment records confirm a diagnosis and treatment of prostate cancer, which has already been a fact established by the previously considered evidence of record. Thus, the VA treatment records on Virtual VA are deemed to be cumulative. A waiver of RO consideration is not helpful to the appellant at this juncture. As such, the Board may proceed with handling of these matters without any prejudice to the Veteran. FINDINGS OF FACT 1. In an August 2002 decision, the Board denied service connection for hemorrhoids, hypertension, and prostate cancer; the Veteran did not file a timely appeal. 2. The evidence added to the record since the August 2002 decision of the Board is cumulative of the evidence of record at the time of that decision. CONCLUSIONS OF LAW 1. The August 2002 decision of the Board denying claims of service connection for hemorrhoids, hypertension and prostate cancer is final. 38 U.S.C.A. §§ 7103(a), 7104(a) (West 2002); 38 C.F.R § 20.1100(a) (2013). 2. The evidence received since the August 2002 decision is not new and material for the purpose of reopening of the claim of service connection for hemorrhoids. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The evidence received since the August 2002 decision is not new and material for the purpose of reopening of the claim of service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. The evidence received since the August 2002 decision is not new and material for the purpose of reopening of the claim of service connection for prostate cancer. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VCAA redefined VA's duty to assist the Veteran/appellant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of an application to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Id. at 11-12. Further, VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. The Board recognizes that VA's notice letter regarding claims to reopen in April 2003 and June 2006 indicates that the last prior final denial was the RO decision of April 1997, when in fact, the last prior decision to become final was the August 2002 decision of the Board denying all three claims of service connection. VA defined "new and material evidence" and explained to the Veteran that the claims were previously denied because evidence did not show that hemorrhoids, prostate cancer, and hypertension were incurred in or aggravated by military service (nexus element was missing). In order to reopen the claims, VA stated that the evidence submitted must be related to this fact, or in other words, the nexus element. The Board finds that whether the Veteran was notified of the last final decision as April 1997 or August 2002, the result is the same - the evidence of record that existed at the time of both of those decisions showed that the Veteran had current diagnoses of hemorrhoids, prostate cancer and hypertension and lay statements indicating the onset of the disabilities in service, but without any supporting medical evidence of such. The RO in 1997 and the Board in 2002 denied service connection for these claims on the exact same basis - the evidence failed to show that such current conditions were linked to service (nexus element). Thus, regardless of which decision the Veteran believed was "final," new and material evidence that supports a finding of a nexus between the current disabilities and service must be shown for the claims to be reopened. As such, the Kent notice error was harmless as it does not prejudice the Veteran. Additionally, the June 2006 letter informed the Veteran of the evidence needed to substantiate the underlying claims of service connection and satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that the claimant would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The VCAA-compliant notice in this case was provided before the adjudication of the claims in November 2006. VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). However, the duty to assist does not arise until the claimant has submitted new and material evidence sufficient to reopen the claim. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007) ("[I]n the 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") (quoting Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). In this case, the RO has declined to reopen the claim, and the Board will do so in this decision, because new and material evidence has not been received. In any event, the identified post-service treatment records have been obtained and associated with the claims file. The Veteran was not afforded a VA examination during his lifetime, but VA was not required afford him such an examination because claim had not been reopened. Furthermore, similar reasoning applies as to VA's duty to obtain a medical opinion for the appellant, or surviving spouse, in this case. Furthermore, it has been documented in the records that multiple attempts have been made to retrieve service treatment records of the Veteran. A letter dated December 1996 indicated that the records were likely destroyed in the July 1973 fire at the records center. Another December 1996 letter listed alternative documents as substitutions for the missing records. A formal finding of unavailability was made in November 2006 which documented the efforts undertaken to retrieve service treatment records, to include various responses to the National Personnel Records Center which yielded negative responses. The Board is cognizant of its heightened duty when such records are missing. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The application to reopen the claims of service connection for hemorrhoids, hypertension, and prostate cancer are thus ready to be considered on the merits. Reopening a Previously Denied Claim Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. For applications to reopen, such as this one, filed prior to August 21, 2001, new and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the Federal Circuit has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In August 2002, the Board denied the claims of service connection for hemorrhoids, hypertension, and prostate cancer. The Board's decision subsumed the RO's decision in April 1997 and was final. 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R §§ 20.1100(a), 20.1104. As the Veteran did not seek and the Chairman did not order reconsideration, the Board's June 2002 decision was final. See 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). The evidence at the time of the August 2002 decision can be summarized as follows. As previously indicated, no service treatment records were available. A private treatment record dated June 1974 reflected no indication of a past medical history of hemorrhoids, prostate cancer or hypertension. The Veteran's blood pressure was noted. There were no complaints related to hemorrhoids (rectal examination was deferred), prostate cancer (genitourinary examination was deferred), or hypertension. An October 1975 VA examination for the purposes of receiving nonservice-connected pension related to a back disorder revealed no complaints of, treatment for, or diagnosis of hemorrhoids, prostate cancer, or hypertension. There were various blood pressure readings documented. The private treatment records from 1981 revealed that the Veteran complained of hemorrhoids. The diagnosis was that of "hemorrhoids by history but not on examination." Blood pressure readings were noted. In July 1983, the Veteran sought VA treatment for hemorrhoids, was noted to have small internal and external hemorrhoidal tags, and was prescribed topical medication. With respect to hypertension, VA medical records from 1995 and 1996 showed the presence of hemorrhoids, hypertension (as diagnosed by a physician), and prostate cancer (records of prostate cancer since 1994). The Veteran testified at a RO hearing in July 1997 about being treated for hemorrhoids in service and the continuation of this condition. He also stated the same with respect to his prostate cancer (which he believed the onset was with the presence of the hemorrhoids in service), and although he reported no treatment for hypertension, he indicated that he had related symptomatology (e.g., dizziness, headaches). Lay statements from the Veteran's spouse in 1997 indicated that the Veteran had problems with hemorrhoids about one year into their marriage (approximately 1960). Statements submitted by the Veteran supported the contention that all three disabilities were manifested in service. The Board considered the existing evidence of record in August 2002 and denied the claims of service connection on the basis that the Veteran had current diagnoses related to his claims, but there was no competent and credible evidence of a nexus linking any to service. In coming to this conclusion, the Board considered the lay statements of record discussing the onset of the disabilities in service, but found the medical evidence of post-service treatment records to be more persuasive. Since the August 2002 decision, the following evidence was submitted in connection with the claims -- VA treatment records dating from 2002 through 2011 showing complaints and/or treatment for the hemorrhoids, prostate cancer, and hypertension; lay statements from family members describing the Veteran's disabilities and his struggles with them; testimony by the Veteran (RO hearing in March 2008) indicating an onset in service of his hemorrhoids and beginning symptomatology for hypertension; SSA disability benefits records, primarily discussing his back disorder (mostly not relevant to current appeal); the Veteran's death certificate; and statements made by the substitute claimant (the Veteran's surviving spouse) in connection with this appeal after the Veteran's death in November 2011. In reviewing the evidence received since the August 2002 decision, the Board finds that, in sum, the evidence mirrors the evidence that existed prior to the decision - evidence of a current disability and lay statements concerning an onset of such disabilities in service. No additional evidence with respect to nexus has been submitted. Thus, the evidence received since the August 2002 denial of the claims of service connection for hemorrhoids, prostate cancer, and hypertension is not new and material because it is cumulative of the evidence that was before the Board at the time of the earlier decision. The evidence before the Board in June 2002 included lay evidence of in-service onset of the disabilities and post-service medical evidence showing diagnoses of prostate cancer, hemorrhoids and hypertension. The new evidence reiterates the facts that were before the Board and noted by its June 2002 decision. None of the new evidence contains non-cumulative information that relates to the basis for the prior denial, such as evidence that supports the existence of a relationship between the current disabilities and an event or incident of the Veteran's service. For the foregoing reasons, the evidence received since the prior final denial of the claims of service connection for hemorrhoids, prostate cancer and hypertension is cumulative in nature and basically repetitive of that at the time of that decision. Consequently, new and material evidence has not been received to reopen the claims, and the application to reopen these claims must therefore be denied. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). ORDER The application to reopen the claim of service connection for hemorrhoids is denied. The application to reopen the claim of service connection for hypertension is denied. The application to reopen the claim of service connection for prostate cancer is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs