Citation Nr: 1629477	
Decision Date: 07/25/16    Archive Date: 08/04/16

DOCKET NO.  11-15 250A	)	DATE
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On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for peripheral neuropathy.

2.  Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for a skin disability.

3.  Whether new and material evidence has been submitted to reopen a previously-denied claim for entitlement to service connection for partial blindness or double vision.

4.  Entitlement to a disability rating greater than 30 percent for residuals of a spontaneous pneumothorax.


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel


INTRODUCTION

The Veteran served on active duty from May 1968 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 RO decision.  This decision also denied service connection for schizophrenia.  During the pendency of the appeal, however, additional evidence was developed which supported the grant of service connection for schizophrenia.  This grant was implemented and a 100 percent disability rating was assigned.  As this grant represents a complete grant of the benefit sought, this matter will be addressed no further by the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a disability rating greater than 30 percent for residuals of a spontaneous pneumothorax is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The RO denied the Veteran's claim for entitlement to service connection for peripheral neuropathy in March 1994 and July 1996.  The Veteran did not appeal these denials to the Board or submit new and material evidence within one year.

2.  The RO denied the Veteran's claim for entitlement to service connection for a skin disorder in July 1996.  The Veteran did not appeal this denial to the Board or submit new and material evidence within one year.

3.  A claim involving residuals of an eye injury claimed as double vision was most recently denied by the Board in February 2005.  The Veteran did not appeal this denial to the Court or submit new and material evidence within one year.  

CONCLUSION OF LAW

Absent new and material evidence to support these claims, they may not be reopened.  38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1100, 20.1103 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to notify and assist

When an application for benefits is received, VA has certain notice and assistance requirements under the law.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must:  (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  This information was provided in an October 2012 letter.

With regard to claims to reopen based upon the submission of new and material evidence, the United States Court of Appeals for Veterans Claims (Court) has held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants.  It is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of how to substantiate the underlying claim and what "new" and "material" evidence means.  See, e.g., VAOPGCPREC 6-14.  This information was also provided in the October 2012 letter.

Service treatment records, VA medical records, Social Security disability records, private treatment reports, and VA examination reports have been obtained and reviewed in support of the Veteran's claims.  All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's VA electronic files.  The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein.

Standard of review

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  In general, when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

However, until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen his claims, the benefit of the doubt doctrine does not apply.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993);

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his electronic VA files.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

Claims to reopen

Pursuant to 38 U.S.C.A. § 5108, the VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means 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.  Notwithstanding any other provision, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the provisions of 38 C.F.R. § 3.156(a).  Such records include service records that are related to a claimed in-service event, injury, or disease.  However, this provision does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim.  38 C.F.R. § 3.156(c). 

The requirement of the receipt of new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal, regardless of the RO's action in the matter.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996).

When a claim to reopen is presented, a two-step analysis is performed.  The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is 'new and material' as defined above.  Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc).  Second, if VA determines that the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled.  In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is not new and material, the inquiry ends and the claim cannot be reopened.

In determining whether the evidence is new and material, the credibility of the newly presented evidence is presumed.  Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam).  The Board is required to consider all of the evidence received since the last disallowance.  Hickson v. West, 12 Vet. App. 247, 251 (1999).

The Veteran's service treatment records contain no indication of complaints or treatment for peripheral neuropathy or any skin disorder.  Service connection for peripheral neuropathy, claimed as due to tear gas exposure, was denied by the RO in March 1994.  The Veteran did not appeal this decision, or submit new and material evidence within one year, and it thus became final one year after he was notified of the decision.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  Service connection for a skin disorder and for peripheral neuropathy on the basis of claimed exposure to herbicides was denied in a July 1996 RO decision, because there is no evidence that the Veteran was in fact exposed to herbicides.  Again the Veteran did not appeal this decision, or submit new and material evidence within one year, and it also became final.  

During service, the Veteran underwent surgery consisting of resection of the lateral rectus muscle and the medial rectus muscle of his left eye for a diagnosis of congenital exotropia.  The Veteran initially claimed entitlement to service connection for an eye disability following his discharge from service.  The RO denied the claim on the basis that the eye disability was congenital in nature and had not been aggravated during service.  The Veteran appealed this denial to the Board, which denied the appeal for the same reasons in an April 1970 decision.  The Veteran has attempted to reopen the claim upon multiple occasions since that time.  A claim involving residuals of an eye injury claimed as double vision was most recently denied by the Board in February 2005.  The Veteran did not appeal the Board's February 2005 denial to the Court, or submit new and material evidence within one year, and the Board's decision is final.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100.

In support of his claim to reopen these prior denials, the Veteran essentially contends that he continues to have these problems and he wishes to have VA benefits for them.  He again asserts that he was exposed to herbicides such as Agent Orange, although he has provided no further support for this assertion.  He also continues to assert that the gas mask provided during basic training was defective and that exposure to tear gas during basic training caused peripheral neuropathy and his eye problems.  Again, he has provided no further support for this assertion.  

Prior claims for these benefits included private doctor opinions which were considered by VA.  These current claims to reopen include only the Veteran's own contentions, which are summarized above.  The Veteran has also resubmitted copies of service treatment records, which had previously been considered by VA.  In accordance with the duty to assist in the current claims, the RO obtained copies of the Veteran's recent VA treatment records.  Careful review of these records reveals nothing pertinent to the nexus between peripheral neuropathy, a skin disorder, or an eye disability and the Veteran's period of service.  Also in the attempt to assist the Veteran, the RO obtained a VA medical opinion in September 2010.  The examiner reviewed the Veteran's medical records and concluded that neither an eye disability nor peripheral neuropathy was related to or caused by the Veteran's service-connected pneumothorax.

In short, the Veteran has not submitted any new and material evidence to support these previously-denied claims.  His newly-submitted contentions are duplicative of those he has already made, and were already considered in prior final denials.  All of the service treatment records he has resubmitted were previously considered by VA.  None of the recent treatment records obtained relates to an unestablished fact, or indeed bears on the questions at hand whatsoever.  No new and material evidence pertaining to the question of whether peripheral neuropathy, a skin disorder, or an eye disability were incurred during service, aggravated during service, or are otherwise related to service has been presented.  These matters were fully investigated and carefully reviewed previously by VA and the Veteran has submitted nothing which could be considered new and material at this time, to support reopening the claims for a de novo review.  

The preponderance of the evidence is against the claims and the appeals must be denied.


ORDER

New and material evidence not having been presented, the previously-denied claims for entitlement to service connection for peripheral neuropathy, a skin disability, and partial blindness and/or double vision may not be reopened.





REMAND

The Veteran has a 30 percent disability evaluation for his service-connected residuals of a bilateral spontaneous pneumothorax under Diagnostic Code 6843 (traumatic chest wall defect, pneumothorax, hernia, etc).  Disabilities under the purview of this rating code are rated according to the General Rating Formula for Restrictive Lung Disease and are based on the results of Pulmonary Function Tests (PFTs).  Post-bronchodilator studies are required when pulmonary function tests are conducted for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner provides a reason post-bronchodilator results should not be done.  38 C.F.R. § 4.96(d) (4). When evaluating based on pulmonary function test results, post-bronchodilator results are to be used in applying the evaluation criteria unless the post-bronchodilator results were poorer than the pre-bronchodilator results.  In those cases, pre-bronchodilator results are to be used for evaluation purposes.  38 C.F.R. § 4.96(d)(5).

Historically, the Veteran's service treatment records reflect that in August 1968, the Veteran experienced a severe, sharp pain in his right chest.  An X-ray showed a complete pneumothorax on the right side.  A thoracotomy was accomplished by inserting a tube between his ribs allowing the lung to be re-inflated.  A "good re-expansion of his lung" was accomplished.  No residuals of the pneumothorax were identified during a VA examination in March 1969.

Service connection for residuals of this disability was granted following the Veteran's discharge from service and a noncompensable disability rating was assigned and remained in effect until recently, when pulmonary function tests dated in February 2014 showed restrictive lung disease warranting a 30 percent disability rating.  

Although the Veteran contends a higher disability rating is warranted, no pulmonary function testing appears to have been performed since the February 2014 VA examination.  We also observe that the Veteran's medical records reflect he has been receiving tobacco-cessation counseling, which if successful, could also impact his pulmonary function test results.  There is thus no recent information to corroborate the Veteran's assertion.  Upon remand, the Veteran's VA treatment records should be updated for the claims file, and he should be provided with another VA examination.

Accordingly, the case is REMANDED for the following actions:

1.  The RO should obtain all records of VA medical treatment afforded to the Veteran since March 2015 at the San Juan VA Medical Center and all related clinics for inclusion in the file.

2.  The Veteran should be afforded a VA pulmonary/respiratory examination to identify all current residuals of the August 1968 right spontaneous pneumothorax.  The claims folder, including all records obtained pursuant to the above request, should be made available to the examiner for review before the examination.  All test and studies, including pulmonary function testing, should be conducted in conjunction with the examination.  

3.  After the development requested above has been completed, the RO should again review the record.  If the benefit sought on appeal remains denied, the Veteran and his representative, should he choose to appoint one, should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

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 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 2014).



____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs