Citation Nr: 1759999	
Decision Date: 12/26/17    Archive Date: 01/02/18

DOCKET NO.  09-41 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for status post-operative right lung lobectomy for squamous cell carcinoma (also claimed as lung infection/disease) ("lung disorder").

2.  Entitlement to service connection for valley fever. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Jasmin C. Freeman, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Air Force from October 1954 to August 1958.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO).  The matter was subsequently transferred to the RO in Phoenix, Arizona.

In November 2017, the Veteran testified before the undersigned at a video conference hearing.  A copy of the transcript has been associated with the claims file.    

The Board notes that during the pendency of the appeal, the RO granted service connection for tinnitus in an August 2012 rating decision and this issue is no longer on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  A claim of entitlement to service connection for a lung disorder was previously denied by a rating decision dated February 1994 because there was no evidence linking the Veteran's lung disorder to military service.  This decision became final in 1995, as the Veteran did not perfect the appeal.

2.  Evidence submitted since the February 1994 rating decision is new, but not material, as it does not address whether a nexus exists between the Veteran's current lung disorder and his active military service.

3.  Medical evidence of record indicates that valley fever was not incurred in or otherwise related to the Veteran's period of active service.


CONCLUSIONS OF LAW

1.  The February 1994 rating decision denying service connection for a lung disorder is final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017).

2.  New and material evidence has not been received to reopen the claim for service connection for a lung disorder.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156   (2017).

3.  The criteria for entitlement to service connection for valley fever have not been met.  38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA) 
VA has a duty to notify the Veteran of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).  The VA satisfied its duty to notify by a letter in April 2008.

In addition, VA has a duty to provide assistance to substantiate a claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  Where, as here, service records are unavailable through no fault of a veteran, the Board has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule.  See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board has undertaken the analysis of the Veteran's claim with these heightened duties in mind. 

VA obtained all available service treatment records identified by the Veteran.  VA requested the Veteran's personnel records, service treatment records, and sick/morning reports, but the National Personnel Records Center (NPRC) responded that the records could not be located and were unavailable for review.  The RO notified the Veteran in letters dated September 2008, April 2013, and May 2017 that all efforts to obtain the records had been exhausted, and further attempts to obtain the records would be futile.  VA requested the Veteran submit the missing service treatment records or other relevant evidence in support of his claims.  VA also notified the Veteran that it would decide the claims based on the evidence of record unless the Veteran submitted the outstanding records.   

II. New and Material Evidence
A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  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 (a).  New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof.  See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  The only exception would be where evidence presented is inherently incredible.  Justus v. Principi, 3 Vet. App. 510 (1992).

Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (2012) to address the question of whether new and material evidence has been received to reopen the claim for service connection.  This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996).

Service connection was previously denied for status post-operative right lung lobectomy for squamous cell carcinoma (also claimed as lung infection/disease) by a rating decision dated February 1994 because there was no evidence linking the Veteran's lung disease to military service.  This decision became final in 1995, as the Veteran did not perfect the appeal, nor did he submit any evidence within 1 year of the rating decision. 

Evidence received since the February 1994 rating decision includes VA treatment records, private treatment records, and the Veteran's lay statements.  This evidence is new, but it is not material, as it does not raise a reasonable possibility of substantiating the Veteran's claim.

The Veteran was previously denied service connection for lung disorder because the record did not contain evidence that his disability was related to his military service.  The private treatment records-specifically, the Mayo Clinic and Valley Presbyterian Hospital records-establish the Veteran's lung disease status post-operative right lung lobectomy for squamous cell carcinoma, but they do not contain a medical nexus opinion that etiologically links the Veteran's current lung disorder to his active duty service.  As such, the evidence presented is cumulative, and it is not new and material.  In this regard, 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, 1347 (2000).  Accordingly, as new and material evidence has not been presented, the claim is not reopened.
 

III.  Service Connection 
Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107 (); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Veteran contends that he has valley fever and contracted it during active duty. 

As set forth above, the Veteran's service treatment records and sick/morning reports are unavailable. 

Post-service, the medical evidence of record shows the Veteran was diagnosed with pulmonary coccidioidomycosis, bilateral apical involvement in August 1968.  The record does not contain any further treatment for this condition, and there is no evidence that the Veteran has a current diagnosis of valley fever during the pendency of his claim.

The Veteran submitted webpage printouts from the Mayo Clinic regarding symptoms of valley fever and a press release by Focus Diagnostics regarding a screening test kit for valley fever.  In a lay statement received June 2009, the Veteran asserted that he had chest cold symptoms until he had lung surgery in December 1968.  

The Veteran testified before the undersigned at a video hearing in November 2017 and stated that he contracted valley fever while stationed in Houston, Texas.  He further claimed that he had infections in service and he was prescribed Penicillin.  The Veteran maintains that his valley fever symptoms continued after service, but stated that he had no confirmed diagnosis yet.  

Regarding the Veteran's assertion that he has valley fever as a result of active duty service, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself.  The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  This would include weighing the absence of contemporary medical evidence against lay statements.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

In the instant case, the Veteran's accounts of valley fever are simply not corroborated by the competent medical evidence of record to show that he has a current diagnosis of valley fever.  While the Veteran is competent to describe his symptoms, without medical training, he has not demonstrated the competency to opine on matters requiring medical expertise, such as the rendering of an actual diagnosis or the etiology of valley fever.  See Jandreau, 492 F.3d at 1376.  Accordingly, the Board assigns little probative weight to the Veteran's assertions that he has valley fever and that this disability is related to his military service.

The Board acknowledges that the Veteran was diagnosed with pulmonary coccidioidomycosis approximately ten years after separation from service.  However, the medical evidence of record does not reflect a current diagnosis of valley fever or any treatment of same.  Accordingly, in the absence of competent and credible evidence of current valley fever, consideration of service connection for valley fever is not warranted on any basis. 

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. §§ 1110; 1131.  In the absence of proof of present disabilities there can be no valid claims.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996).   

As the weight of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The petition to reopen a claim for service connection for a lung disorder is denied.

Entitlement to service connection for valley fever is denied.


____________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs