Citation Nr: 1822174 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 14-25 251A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for nerve damage (neck, shoulder, arm, hand, right side and bilateral thighs) as secondary to the service connected disability of residuals, prostate cancer with radical prostatectomy and erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army on active duty from August 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In several statements of record, the Veteran claims that the 100 percent rating for his service-connected residuals of prostate cancer should go back the date of his original award. See statements of February 2014 and July 2014. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. By a decision entered in March 2004, the RO denied the Veteran's claim for service connection for nerve damage, as secondary to the service connected disability of residuals, prostate cancer with radical prostatectomy. 2. The Veteran did not initiate an appeal of the RO's March 2004 rating decision during the one year period following the mailing notice of that decision; nor was any new and material evidence received within a year. 3. The evidence submitted since the March 2004 rating decision does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the claims for service connection for nerve damage (neck, shoulder, arm, hand, right side and bilateral thighs) as secondary to the service connected disability of residuals, prostate cancer with radical prostatectomy and erectile dysfunction. CONCLUSIONS OF LAW 1. The March 2004 rating decision denying service connection for nerve damage, as secondary to the service connected disability of residuals; prostate cancer with radical prostatectomy is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 20.200, 20.1100, 20.1104 (2017). 2. New and material evidence has not been presented since the March 2004 rating decision that denied service connection for nerve damage, as secondary to the service connected disability of residuals; prostate cancer with radical prostatectomy was issued; thus, the claim is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty 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). Applicable Laws and Regulations Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). 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, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has 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 reopening." 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996). Facts and Analysis In a rating decision issued in March 2004, the RO in Philadelphia, Pennsylvania denied, in pertinent part, the Veteran's claim of entitlement to service connection for nerve damage, as secondary to the service connected disability of residuals; prostate cancer with radical prostatectomy. Evidence of record at that time included a statement from Dr. Jafri, dated in April 2003. This statement was rejected because it provided no rationale to support the conclusion. This claim was denied based on the December 2003 VA examiner's determination that the Veteran's symptoms were most likely related to a degenerative disease that predated his prostate surgery. The VA examiner noted that the Veteran's thigh symptoms were most compatible with meralgia paresthetica and not likely caused by his prostate surgery. The Veteran did not file an appeal to this decision and the Veteran next contacted VA about this claim in a statement of August 2012. A finally adjudicated claim is an action which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 3.160(d), 20.302, 20.1103. In this case, the Veteran was notified of the denial the same month that the rating decision was issued but he did not initiate an appeal of the rating decision and therefore, it became final. Furthermore, the Veteran did not submit any statements or evidence relevant to the claim within one year of the March 2004 rating decision which would render said rating decision non-final for VA purposes under 38 C.F.R. § 3.156 (b). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). The claim of service connection for nerve damage, as secondary to the service connected disability of residuals; prostate cancer with radical prostatectomy and erectile dysfunction, may be reopened only if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. Id. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen a claim of service connection for nerve damage, as secondary to the service connected disability of residuals; prostate cancer with radical prostatectomy, the evidence before VA at the time of the prior final rating decisions March 2004 consisted of the Veteran's service medical treatment records, a December 2003 VA examination , private medical treatment records and the Veteran's lay statements. The evidence received since March 2004 includes an August 2012 written statement from the Veteran, the report of an April 2013 VA medical examination, and Richmond VA Medical Center treatment records. None of this evidence indicates that the Veteran's nerve damage is linked to his prostate surgery. For example, the Veteran was afforded a VA medical examination for his nerve damage disability in April 2013, and the VA examiner diagnosed the Veteran with subjective right upper extremity sensory peripheral neuropathy, subjective right lower extremity sensory peripheral neuropathy and subjective left lower extremity sensory peripheral neuropathy. The VA examiner determined the Veteran's claimed condition was less likely than not due to his service connected prostate cancer. The examiner noted that Veteran's previous history of degenerative joint disease in his cervical and lumbar spine. The examiner stated "This [V]eteran has cervical spondylosis with degenerative disc disease and lumbar spondolithesis. It is more likely that conditions that existed before and after his surgery are the cause of his current subjective peripheral neuropathy of his right upper and lower extremity." See April 2013 VA Examination at page 17. Further review of VA treatment records dated between August 2012 and February 2013, does not demonstrate that there is an etiological relationship between the Veteran's nerve condition his service connected disability of residuals, prostate cancer with radical prostatectomy and erectile dysfunction. Likewise, the Veteran's August 2012 written comment, "nerve damage caused by procedure done during surgery", does not reveal any evidence of any etiological nexus between his current nerve disability and his prostate cancer. The RO denied the Veteran's claim in March 2004, due to a lack of nexus between the Veteran's nerve condition and his service connected prostate cancer. Whether the Veteran had an existing disability was not in dispute. Thus, the question is whether the Veteran has submitted or VA has otherwise received evidence that was not before the RO in March 2004, that is neither redundant nor cumulative, and that raises the possibility of substantiating a claim that the Veteran's diagnosed nerve condition is secondary to his service connected disability of residuals, prostate cancer with radical prostatectomy and erectile dysfunction. The April 2013 VA examination opinion says the Veteran's diagnosed nerve condition is less likely than not related to his service connected prostate cancer. This evidence is new; however it lowers, rather than raises, the Veteran's possibility of substantiating his claim. The Board is not permitted to reopen the claim on the basis of negative evidence. See Villalobos v. Principi, 3 Vet. App. 450 (1992). The Veteran's newly submitted VA treatment records do not include any evidence suggesting the Veteran's diagnosed nerve condition is secondary to his service connected disability of residuals, prostate cancer with radical prostatectomy and erectile dysfunction. Finally, the Veteran's written statement that his nerve condition is related to his prostate cancer is his non-medical opinion. Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As such, the Board finds that new and material evidence sufficient to reopen the Veteran's claim for service connection for nerve damage (neck, shoulder, arm, hand, right side and bilateral thighs) as secondary to the service connected disability of residuals, prostate cancer with radical prostatectomy and erectile dysfunction, has not been submitted. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the claim to reopen is denied. ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for nerve damage (neck, shoulder, arm, hand, right side and bilateral thighs) as secondary to the service connected disability of residuals, prostate cancer with radical prostatectomy and erectile dysfunction, and, therefore, the appeal is denied. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs