Citation Nr: 1502615 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 12-00 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a skin disability (originally claimed as rashes), to include as due to exposure to test agents used during Project 112/Project Shipboard Hazard and Defense (SHAD) and Agent Orange exposure 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension, to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1967. This appeal to the Board of Veterans' Appeals (Board) is from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. By that rating action, the RO denied service connection for skin disability (originally claimed as rashes) and hypertension, each claimed as due to exposure to test agents used during Project 112/SHAD. The Veteran appealed this rating action to the Board. On VA Form 9, received by the RO in December 2011, the Veteran requested a hearing before a Veterans Law Judge at a local RO. In a statement, received by the RO in January 2012, the Veteran withdrew his hearing request. (See VA Form 21-4138, Statement in Support of Claim, received by the RO in January 2012). A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. 38 C.F.R. § 20.702(e) (2014). In view of the foregoing, the Board considers the Veteran's hearing request withdrawn and will proceed to adjudicate the appeal. Id. The issues of whether new and material evidence has been received to reopen a previously denied claim for service connection for neuropathy, to include peripheral neuropathy, claimed as due to test agents used during Project SHAD and entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD), currently evaluated as 10 percent disabling have apparently been raised by the Veteran's representative in a December 2014 written argument to the Board, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate clarification/action. 38 C.F.R. § 19.9(b) (2014). Attention is directed to the Board's April 2009 and March 2012 decisions on these issues, as well as the RO's April 23, 2012 letter to the Veteran. FINDINGS OF FACT 1. In a December 2014 written argument to the Board, the Veteran, through his representative, withdrew the issue of entitlement to service connection for a skin disability, to include exposure to test agents used during Project 112/SHAD and Agent Orange exposure. 2. By an April 2009 decision, the Board, in pertinent part, denied service connection for hypertension, to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure. 3. Evidence added to the record since the Board's April 2009 decision does not relate to an unestablished fact necessary to substantiate the underlying claim for service connection for hypertension, to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure. (i.e., evidence showing that the Veteran's hypertension is etiologically related to his period of military service, to include as due to exposure to test agents used during Project 112/SHAD and/or Agent Orange; or, was manifested to a compensable degree within one year of service discharge). CONCLUSIONS OF LAW 1. The issue of entitlement to service connection for a skin disability (originally claimed as skin rashes), to include as due to test agents used during Project 112/SHAD and Agent Orange exposure is withdrawn. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. The April 2009 Board decision, wherein the Board, in pertinent part, denied service connection for hypertension, to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure, is final. 38 U.S.C.A. § 7104 (West 2014). 3. The evidence received since the Board's April 2009 decision, wherein it denied service connection for hypertension, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdraw of Appeal- Service Connection Claim (skin disability) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a December 2014 written argument to the Board, the Veteran, through his representative, withdrew the issue of entitlement to service connection for a skin disability (originally claimed as rashes), to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure. (See Veteran's representative's December 2014 written argument to the Board, at page (pg.) 2)). Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed. II. Duties to Notify and Assist Before addressing the merits of the new and material evidence to reopen issue on appeal, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper Veterans Claims Assistance Act (VCAA) notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See also Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA, however, may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Pelegrini, 18 Vet. App. at 121. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim that complies with 38 U.S.C.A. § 5103(a) (West 2014), 38 C.F.R. § 3.159(b) (2010), and any applicable legal precedent. The RO did not provide the Veteran with Kent notice with respect to his petition to reopen a previously denied claim for service connection for hypertension, to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure. VA's General Counsel has held that Kent, 20 Vet App. 1 (2006), is no longer controlling precedent insofar as it required case-specific notice in applications to reopen previously denied claims (i.e., new and material evidence). See VAOPGCPREC 6-2014 (Nov. 21, 2014). In addition, the Federal Circuit has held that in a claim to reopen, while VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, it is required "to explain what 'new and material evidence' means." Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). In the appealed June 2011 rating action and November 2011 statement of the case (SOC), the RO informed the Veteran of the reasons for the previous denial of his claim for service connection for hypertension and the laws and regulations regarding new and material evidence, respectively. (See June 2011 rating action, at pg. 2 and SOC at pages (pgs.) 4, 5)). Thus, the Board finds that the Veteran is not prejudiced by the Board's decision to proceed with a final decision on the new and material evidence claim decided herein. Bernard v. Brown, 4 Vet. App. 384 (1993). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his new and material evidence claim decided herein, and therefore appellate review may proceed without prejudicing him. Id; 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment and personnel records and VA treatment records. The Veteran also submitted personal statements. In April 2011, a VA physician examined the Veteran in conjunction with his application to reopen the previously denied claim for service connection for hypertension and provided an opinion as to the etiology of this disability. The VA physician provided an addendum opinion in June 2011. (See April and June 2011 VA hypertension and addendum reports, respectively). The Board finds that the April and June 2011 VA examination and addendum, respectively, to be adequate to fully adjudicate the petition to reopen a previously denied claim for service connection for hypertension. The VA examiner discussed the etiological relationship, if any, between the Veteran's hypertension and his period of active military service, to include his exposure to test agents during Project 112/SHAD. The examiner also conducted a full review of the claims file and considered the Veteran's service history to include his confirmed participation in Project 112/SHAD. The April and June 2011 examination report and addendum are, therefore, fully adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to the new and material evidence issue decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits Analysis The Veteran seeks to reopen a previously denied claim for service connection for hypertension, to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure. A. Laws and Regulations (i) Service connection-laws and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. (ii) New and Material Evidence-Laws and Regulations Generally, a claim which has been denied in a Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with 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). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 48 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis Evans v. Brown, 9 Vet. App. 273, 285 (1996). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening. " Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). (B) Analysis The Veteran seeks to reopen a previously denied claim for service connection for hypertension. He contends that his hypertension is a result of his exposure to hazardous agents (i.e., sarin and methylacetoacetate (stimulant for sarin nerve agent)) during his participation in Project 112/SHAD while serving aboard the USS BERKELEY (DDG-15) in February 1965. He also maintains that the USS BERKELEY was involved I n the rescue of "downed pilots" from December 1964 to April 1967 along the coast of the Republic of Vietnam. (See July 2005 VA General Medical examination report). In an April 2009 decision, the Board, in pertinent part, denied entitlement to service connection for hypertension. The Board's April 2009 decision is final. 38 U.S.C.A. § 7104. The Board essentially concluded that the preponderance of the evidence of record did not demonstrate that the Veteran had hypertension that was related to Agent Orange exposure or exposure to hazardous substances used during his participation in Project 112/SHAD, or was otherwise etiologically related to military service. In denying the claim in April 2009, the Board noted that the Veteran's service treatment records did not disclose any evidence of hypertension. In fact, and as indicated by the Board, the initial post-service evidence of hypertension was in 1970. The Board also pointed to October 2003 and July 2005 VA General Medical examination reports, containing evidence that the Veteran had been initially diagnosed with hypertension in the 1970s (October 2003) and an opinion that his hypertension was not consistent with the accepted symptoms for a limited exposure to methylacetoacetate (July 2005). The July 2005 VA examiner further opined that the Veteran's "symptoms," which included his hypertension, were associated with his gender, age, body type, and lifestyle. (See October 2003 and July 2005 VA examination reports). The Board maintained that the July 2005 VA examiner's opinion was uncontroverted and that there was no favorable evidence that the Veteran's hypertension was related to his confirmed participation in Project 112/SHAD. (Id. at pg. 7). Regarding the relationship between Agent Orange exposure and the Veteran's diagnosed hypertension, the Board related that there was no evidence that he had served in the Republic of Vietnam pursuant to 3.307(a)(6) (2014). The Board also noted that hypertension was not a disease subjective to presumptive service connection as a result of Agent Orange exposure under 3.309(e) (2014). (Id. at pg. 8). The Board's current review of the evidence present at the time of the April 2009 Board decision shows that the National Personnel Records Center (NPRC) had confirmed that the USS BERKELEY (DDG-15) was in the "official waters of Vietnam" from December 26, 1965 to February 2, 1966, and from February 26, 1966 to April 6, 1966. (See NPRC's June 2006 report). The Veteran's service personnel records confirm that he served aboard the USS BERKELEY (DDG-15) from November 16, 1964 to December 16, 1966. He is not, however, shown to have served on the inland waterways of Vietnam or to have served on land in Vietnam. The Veteran's petition to reopen his previously denied claim for service connection for hypertension was received by the RO in late June 2010. (See Veteran's written statement to VA, received by the RO in late June 2010). The Board finds that new and material evidence has not been received to reopen the previously denied claim for service connection for hypertension, to include as due to exposure to test agents used during Project 112/SHAD and Agent Orange exposure. Evidence received since the Board's April 2009 decision includes, in pertinent part, VA treatment records, dated from August to December 2009, reflecting that the Veteran had continued to receive treatment for his hypertension. (See VA treatment reports, dated from August to December 2009). Other evidence added to the record since April 2009 was an April 2011 VA examination report and June 2011 addendum report. In April 2011, VA examined the Veteran to determine the etiology of his hypertension. After a recitation of the Veteran's in-service history with respect to his exposure to Agent Orange and methylacetoacetate during participation in Project 112/SHAD, review of a National Academies Health Effects of Project Shad Chemical Agent Methylacetoacetate study, and service and post-service treatment records, the VA examiner concluded that his hypertension was not a result of exposure to methylacetoacetate. The VA examiner reasoned that according to the study by the National Academies, methylacetoacetate was generally regarded as being a mild to moderate irritant to skin and mucous membranes, but with the capability of severe corrosive effects on the eye, as well as gastrointestinal disturbances if swallowed. However, according to the VA examiner, reactions were acute and not permanent. Overall, the VA examiner opined that the Veteran's hypertension was not a result of exposure to methylacetoacetate. (See April 2011 VA examination report). In a June 2011 addendum, the VA examiner further affirmed her conclusion and stated that there were no side effects from methylacetoacetate that caused hypertension and to state otherwise would be speculative. (See June 2011 addendum to an April 2011 VA examination report). The above-cited evidence is new because it was not of record at the time of the Board's April 2009 decision. The evidence is not material. It is not material because it does not relate to an unestablished fact; namely, evidence that the Veteran's hypertension is etiologically related to his period of military service, to include his exposure to hazardous agents during participation in Project 112/SHAD and Agent Orange exposure. There is also no evidence of hypertension manifested to a compensable degree within one year of service discharge in June 1967. In addition, the Veteran's statements are neither new nor material. His lay statements are also generally presumed to be credible when determining whether the claim should be reopened. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's statements and testimony that he has hypertension as a result of exposure to hazardous agents during his participation in Project 112/SHAD and also as a result of Agent Orange exposure are not new evidence because they are duplicative of statements made in support of his claim when it was denied by the Board in April 2009. Cf. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Thus, while some of the evidence added to the record after the Board's final April 2009 decision is new (i.e., VA treatment and examination reports, dated from August 2009 to June 2011), it is not material within the definition of 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and it does not raise a reasonable possibility of substantiating the claim. The record is devoid of any competent evidence demonstrating that the Veteran's hypertension is etiologically related to his period of military service, to include his participation in project 112/SHAD and Agent Orange exposure. There is also no evidence of hypertension manifested to a compensable degree within one year of service discharge in June 1967. Finally, the Board notes that in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Unlike Shade, the Board has not failed to properly apply 38 C.F.R. § 3.156(a) to the evidence presented in the current claim to reopen. Here, as noted in detail above, new evidence of record was not found to be material as it did not relate to an unestablished fact necessary to substantiate the claim. The newly submitted evidence of record still fails to establish that the Veteran's hypertension is etiologically related to an incident of service origin, or that it had its initial onset therein; or, was manifested to a compensable degree within one year of service discharge. When considering newly submitted evidence in conjunction with the evidence previously of record, the Board has not required the Veteran to submit evidence as to each previously unproven element of his claim. There was only one unproven element and that element remains to be proved, namely evidence of a nexus between the Veteran's currently diagnosed hypertension and his period of military service, to include exposure to hazardous substances during his participation in Project 112/SHAD and exposure to Agent Orange. ORDER The appeal with respect to the issue of entitlement to service connection for a skin disability (originally claimed as rashes), to include as due to exposure to test agents used during Project 112/SHAD and exposure to Agent Orange, is withdrawn. New and material evidence not having been received, the claim for service connection for hypertension, to include as due to exposure to test agents used during Project 112/ SHAD and exposure to Agent Orange, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs