Citation Nr: 1807375 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-03 0839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for cancer, unspecified. 3. Whether new and material evidence has been submitted to a reopen a claim of entitlement to service connection for an eye condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to July 1986. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas in which the RO, among other things, denied the issues on appeal. In November 2017, the Veteran testified during a Travel Board hearing before the undersigned Veteran's Law Judge. A transcript of this hearing has been associated with the claims file. This appeal was processed using the Veteran's Benefits Management System (VBMS), Caseflow Reader and Legacy Content Manager. The issue of entitlement to service connection for hypertension 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 preponderance of the evidence is against finding that the Veteran has ever been diagnosed with cancer. 2. A February 2000 rating decision denied entitlement to service connection for an eye condition. Notice of that decision was provided in March 2000. The Veteran did not appeal the rating decision or submit new and material evidence within the one-year appeal period of that decision. 3. Evidence received since the February 2000 rating decision with respect to the claim for entitlement to service connection for an eye condition is new, but does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for cancer, unspecified, have not been met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The February 2000 rating decision that denied a previous claim of entitlement to service connection for an eye condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. Evidence received to reopen the Veteran's claim of entitlement to service connection for an eye condition is not new and material; and therefore, the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection for Cancer, Unspecified In this appeal, the Veteran seeks service connection for an unspecified cancer. For reasons set forth below, the Board finds that the Veteran's claim of entitlement to service connection for cancer must be denied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, such as leukemia and malignant tumors, will be presumed if the diseases manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). When considering evidence supporting a service connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In this case, the Veteran testified during his November 2017 hearing that he believed that he might have throat cancer, but was uncertain; and that he would try to obtain additional information as he did not believe he had been officially diagnosed by a doctor with cancer. In this regard, the Veteran testified that during service, he developed a recurrent sore on the back of his throat; and that his primary care provider had taken a biopsy of the sore during a period when it was active. He indicated that the biopsy was inconclusive. See BVA hearing transcript, pgs. 7-8. The Veteran testified that he was uncertain as to when his throat biopsy was done; and was not able to obtain that information from his doctor because, although he had called to obtain such information, the hospital where he was treated refused to take his phone call. Id., pgs. 8, 13. In order to be granted service connection, the evidence of record must show that a current disability exists. Service connection on either a direct or secondary basis cannot be granted without evidence of a current disability. 38 U.S.C. § 1102; 38 C.F.R. § 3.304. In this case, a review of the voluminous medical evidence in the claims file dated from 1986 to 1989 and from 2009 to 2016 reveals a complete lack of documentation indicating that the Veteran has ever been diagnosed to have cancer. In fact, there is no evidence in the claims file indicating that the Veteran has ever presented symptomatology that could be associated with a diagnosis of cancer; or any evaluations undertaken in relationship to any cancer-related symptoms or conditions. In this regard, the Board observes that a VA medical record dated in January 2015 noted a medical provider documenting in the Veteran's medical notes that he was having bizarre thoughts, stating that he had a history of throat cancer that he cured with shark cartilage. Another medical provider noted in the Veteran medical records that the Veteran had reported that he had been diagnosed and treated for cancer by an ENT (ear, nose and throat) doctor in 2008. See VA medical records dated in September 2014. In light of the Veteran's reports, the examiner reviewed the Veteran's medical progress notes starting in 2007 and found no obvious notations or indications related to cancer, cancerous pathology, biopsies or ENT visits. In light of the evidence set forth above, including the Veteran's testimony that he thinks he "might" have cancer of the throat and that he had to obtain more information in regards to whether he has actually ever been diagnosed with cancer, the Board finds that the preponderance of the evidence is against the Veteran's claim. There is no evidence of record supporting a finding that the Veteran has, or ever has had, a diagnosis of cancer. Given the lack of a current diagnosis upon which service connection can be based, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for unspecified cancer, and the claim must be denied. New & Material Evidence to Reopen an Eye Condition Claim Service connection for an eye condition was denied by the RO in a February 2000 rating decision on the basis that the evidence failed to show that the Veteran had a post-service diagnosis pertaining to the eyes; the Veteran's service records did not reflect (and actually contradicted) any treatment for or diagnosis of an eye disease or injury. The RO notified the Veteran of its decision in March 2000. The Veteran did not appeal the February 2000 rating decision, and no evidence which may constitute new and material evidence was received within the one-year appeal period. Thus, that decision is final. 38 U.S.C.§ 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. To reopen the claim, the Veteran must submit evidence that is new and material to the claim. New evidence means existing evidence not previously submitted to VA. 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. See 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). As set forth above, the February 2000 rating decision denied service connection for an eye condition on the basis that the evidence of record did not show that the Veteran had a diagnosed eye condition that could be service-connected; and his service records did not note any treatment for or diagnosis of an eye disease, injury or symptomatology. In the September 2009 rating decision on appeal, the RO declined to reopen the Veteran's eye condition claim. In doing so, the RO found that the evidence it had received since the February 2000 rating decision was not new and material. As set forth above, the Veteran's claims file contains medical records dated from 2009 to 2016. Additional evidence that is new since the February 2000 rating decision consists of statements from the Veteran dated in November 2008 and February 2009 and testimony during his November 2017 BVA hearing in which he essentially reported that he was experiencing vision problems in one or both eyes that he felt was the result of his eye being injured by metal while he was in service. A review of the medical evidence added to the claims file since February 2000 rating decision fails to show that the Veteran has been diagnosed as having any eye condition, other than having a need for eyeglasses. See, e.g, VA medical records dated in February 2016. The only reference to a potential eye problems relates to a February 2016 primary care follow-up treatment note in which the Veteran reported to his care provider that his left eye made a popping sound. The record fails to reflect that the Veteran was evaluated for an eye problem at that time; nor was he diagnosed with an eye condition. No other records appear to document any reports of eye pain or an eye condition. In terms of the Veteran's statements and testimony, the Board observes that they do not provide any additional information or evidence as to a post-service diagnosis of an eye condition; nor do not reflect any probative information as to when the Veteran's alleged eye injury occurred in service and how that injury developed into any actual diagnosed eye condition. While the Veteran is competent to report that he hurt his eye(s) in service, he is not competent to diagnoses himself as having a medical condition develop as a result of the injury he states occurred in service as such a determination is beyond the capability of lay diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (finding that certain disabilities are not conditions capable of lay diagnoses); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, although the claims file contains evidence received since the February 2000 rating decision that is new, that evidence does not relate to an unestablished fact necessary to substantiate the Veteran's eye condition claim and does not raise a reasonable possibility of substantiating the claim (i.e., the fact that the Veteran has an eye disorder/condition that has been diagnosed by his doctor or other medical health care provider upon which service connection may be granted). To reopen the Veteran's claim, the Veteran needs to provide VA with evidence from his medical provider showing that he has been or is being treated for a diagnosed eye condition. As new and material evidence has not been submitted to reopen the finally disallowed claim of entitlement to service connection for an eye condition, the Board finds that this claim cannot be reopened. Therefore, the appeal is denied. ORDER Service connection for cancer, unspecified, is denied. New and material evidence not having been received; the claim for entitlement to service connection for an eye condition is not reopened. REMAND A review of the Veteran's post service records reflects he is taking medication to control high blood pressure. His service treatment records show that at is separation medical examination in March 1986, his clinical evaluation noted that his endocrine system was normal and that his blood pressure was 120/90. See March 1986 report of medical examination. However, in his March 1986 report of medical history form, the Veteran marked the answer "yes" in response to the question of whether he had currently or previously had high or low blood pressure. In the "remarks" portion of the medical history form, the person who examined the Veteran indicated that he had a previous episode of hypertension that had resolved; and that he was not taking any medication at that time. Although the evidence from the Veteran's actual separation medical examination indicates that the Veteran separated from service with a blood pressure reading that was within the normal range, his report of medical history form raises doubt as to whether the Veteran's reported single incident of hypertension in service reflected a true picture that the Veteran did not have high blood pressure or hypertension; or if the Veteran's normal blood pressure reading upon separation was, in fact, the oddity. Giving the doubt raised by the records, the Board finds that the Veteran's hypertension claim should be remanded for the purpose of affording the Veteran a VA examination. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of any hypertensive condition. The examiner is asked to review all of the evidence of record and then provide a medical opinion as to whether it is at least as likely as not that the Veteran's post-service hypertension had its onset in service or is otherwise related to an in-service disease or injury; including the notation at service separation of an in-service episode of hypertension. A rationale for any opinion should be included in the report. 2. If the benefit sought is denied, the AOJ should prepare a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs