Citation Nr: 0005315 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-37 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for diabetes mellitus. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a prostate disorder. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active military service from November 1948 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Seattle Regional Office (RO) August 1995 rating decision which denied a request to reopen claims of service connection for diabetes mellitus, a prostate disorder and a skin condition. By May 1998 supplemental statement of the case, the RO reopened and denied the veteran claims of service connection for a prostate disorder and a skin condition. However, the U.S. Court of Appeals for Veterans Claims has held that the Board does not have jurisdiction to consider a claim which has been finally adjudicated unless new and material evidence has been submitted. Thus, the Board must first determine whether new and material evidence has been submitted before proceeding to decide a case on the merits, regardless of the RO determination. Barnett v. Brown, 8 Vet. App 1 (1995). As such, the preliminary issue before the Board with respect to the claims of service connection for a skin condition and a prostate disorder remains one of newness and materiality, as set forth on the title page of this decision. Subsequent to the issuance of the last supplemental statement of the case, copies of the veteran's service medical records and medical records from Madigan Army Medical Center were associated with the claims folder. The RO did not issue a supplemental statement of the case; however, as these records are duplicative of material which was already of record, they need not be referred to the RO for inclusion in another supplemental statement of the case. 38 C.F.R. §§ 19.31, 19.37, 20.1304 (1999). FINDING OF FACT The Board denied the veteran's claims of service connection for diabetes mellitus, a prostate disorder and a skin condition in August 1987; additional evidence submitted since the August 1987 decision is cumulative of evidence previously considered, it is neither competent nor probative of the material matters for which the claims were previously denied, and it is not so significant that it must be considered to fairly decide the merits of the claims. CONCLUSION OF LAW As the evidence received since the Board's August 1987 denial of the claims of service connection for diabetes mellitus, a prostate disorder and a skin condition is not new and material, the decision is final and the claims are not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he has diabetes mellitus, a prostate disorder and a skin condition which are of service onset. He asserts that his prostate disorder and skin condition result from Agent Orange exposure while serving in Vietnam. He maintains that he submitted new and material evidence to warrant reopening of his claims of service connection for diabetes mellitus, a prostate disorder and a skin condition. Service connection may be granted for disability resulting from chronic disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 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) (1999). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be allowed on a presumptive basis for certain disabilities, such as diabetes mellitus, if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1999). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) (1999) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 U.S.C.A. § 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(e) (1999). Chloracne, or other acneform disease, as well as acute and subacute peripheral neuropathy may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). Once there has been an administratively final denial of a claim, whether by an RO or the Board, a claimant must submit new and material evidence in order to have VA reopen and review the former disposition of that claim. 38 U.S.C.A. § 5108. New and material evidence is evidence not previously submitted to agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). This definition of new and material evidence was recently endorsed by the U.S. Court of Appeals for the Federal Circuit. See Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). I. Diabetes Mellitus In August 1987, the Board denied the veteran's claim of service connection for diabetes mellitus. In denying service connection, the Board observed that the veteran's diabetes mellitus was not evident in service or manifest to a compensable degree within the year following his service separation. The relevant evidence which was of record at the time of the August 1987 Board decision included the veteran's service medical records which are negative for any report or clinical finding of diabetes mellitus. Medical records, dated from September 1975 to December 1984, from Madigan Army Medical Center (AMC) show that, in December 1984, the veteran was assessed as having had non-insulin dependent diabetes mellitus since 1981. VA outpatient treatment records, dated from June 1984 to October 1985, show that, in June 1984, it was noted that the veteran had a history of being a diabetic. On VA medical examination in April 1986, the veteran was diagnosed as having a good history of diabetes. It was noted that he had had elevated blood sugars in 1981, and that he may have had elevated blood sugar levels for a substantial period of time prior to 1981. At a February 1987 hearing, the veteran testified that his diabetes mellitus was first shown in 1981. Relevant evidence added to the record since the Board's August 1987 decision includes copies of private medical records, dated from October 1971 to February 1985, which do not reveal the presence of diabetes nor do they show that the veteran reported having diabetes on examination in October 1971 and November 1978. Examination reports in 1984 show that he reported that he was a diabetic. Medical records, dated from October 1977 to August 1997, from Madigan AMC, show that the veteran was assessed as having diabetes mellitus on many occasions. At a January 1996 hearing, the veteran testified that he first noticed his diabetes mellitus in February 1981. On VA agent orange examination in August 1997, the veteran was diagnosed as having diabetes mellitus. On review of the foregoing, it is apparent that the veteran has not presented new and material evidence to warrant a reopening of his claim of service connection for diabetes mellitus. In particular, the private medical records are new as they were not of record at the time of the prior denial. However, they are not material as they do not demonstrate that the veteran's diabetes mellitus was evident in service or manifest to a compensable degree within the year following his service separation. Rather, they show that he did not report that he had diabetes until 1984. Moreover, these records are also essentially cumulative as the Board was aware that the veteran had diabetes at the time of the August 1987 denial. The medical records from Madigan AMC and the August 1997 VA agent orange examination report are new; however, these records are not probative or material as they show symptoms, treatment and recommendations at a time years after the veteran's separation from service, and do not relate diabetes mellitus to his period of active service or the one year presumptive period immediately thereafter. In addition, they are cumulative because, as reported above, the Board was aware that he had diabetes at the time of the August 1987 denial. II. Prostate Disorder In its August 1987 decision, the Board denied the veteran's claim of service connection for a prostate disorder. In so doing, the Board noted that the veteran's in-service prostate problems had been acute, and resolved without any residual disability. It also indicated that post-service medical records had not demonstrated that the veteran had a chronic prostate disorder which was of service origin. The relevant evidence which was of record at the time of the August 1987 Board decision included the veteran's DD Form 214 which shows that he served on active duty in the Republic of Vietnam. The veteran's service medical records show he was treated for gonorrhea of the urethra in March and September 1949. In May 1950 and January 1953 he was assessed as having acute urethritis due to gonococcus. January and February 1970 records show that he was assessed as having prostatitis. It was noted that he had prostate difficulty since 1966. His April 1971 service retirement medical examination shows that a clinical evaluation of his prostate revealed normal findings. In the accompanying Report of Medical History, he indicated that he had not had frequent or painful urination. Medical records, dated from September 1975 to December 1984, from Madigan AMC show that the veteran was seen with complaints of voiding problems on occasion. They also show that he was assessed as having benign prostatitic hypertrophy in July 1978. VA outpatient treatment records, dated from June 1984 to October 1985, do not show that the veteran received any treatment for a prostate disability. On VA medical examination in April 1986, a clinical evaluation of the veteran's prostate revealed normal findings. It was noted that he had experienced frequency, hesitancy and urgency from 1966 to 1981. It was also noted that he no longer experienced any hesitancy, but that he continued to experience nocturia one or two times per night as well as some occasional voiding problems. At the February 1987 hearing, the veteran testified that he had been treated for prostate problems on many occasions during his period of service. He also testified that he continued to experience prostate problems and that their onset was in 1966. He reported that his prostate was normal at the time of his service retirement examination because he had taken antibiotics. Relevant evidence added to the record since the Board's August 1987 decision includes copies of private medical records, dated from October 1971 to February 1985, which show that the veteran was assessed as having benign prostatic hypertrophy in July 1978. Medical records, dated from October 1977 to August 1997, from Madigan AMC show that the veteran was seen with complaints of voiding difficulties on occasion. They also show that he had a transurethral resection of his prostate in 1991. At a January 1996 hearing, the veteran testified that he treated his prostatitis with various medications. He also stated that his prostate had been scraped and that he had prostate problems since his service separation. He indicated his belief that his prostatitis was the result of his Agent Orange exposure in 1966. On VA agent orange examination in August 1997, the veteran was diagnosed as having benign prostatic hypertrophy, transurethral resection of the prostate in 1991 and no evidence of cancer. On June 1998 telephonic consultation report, a physician indicated that the veteran's medical records were reviewed, revealing that he had been diagnosed as having an enlarged prostate gland in 1970, and that he was referred to a urologist at the time who believed his prostate was normal and that his symptoms (urinary urgency, frequency, and retention) were due to excessive caffiene use. The physician also indicated that, in 1991, the veteran was diagnosed as having benign prostatic hypertrophy and underwent a transurethral resection of the prostate. Based on the foregoing, the Board finds that the veteran has not presented new and material evidence to warrant a reopening of his claim of service connection for a prostate disorder. In particular, the private medical records are cumulative as the Board was aware that the veteran had been assessed as having benign prostatic hypertrophy in July 1978 at the time of the prior denial. The medical records from Madigan AMC and the August 1997 VA agent orange examination report are new as they were not of record previously; they show that the veteran underwent a transurethral resection of the prostate in 1991, and that he was diagnosed as having benign prostatic hypertrophy in 1997; however, these records are not probative or material as they relate to the nature of the veteran's prostate disorder many years after his separation from service. In addition, they do not, in any way, establish that his prostate disorder was related to service or the prostate difficulty for which he was treated therein. As such, they are relevant only as to the nature of his prostate disorder many years after his separation from service. The Board observes that the recently-furnished, June 1998 telephonic consultation report from a physician is cumulative as the Board was aware of the veteran's in-service prostate problems in August 1987. Moreover, the physician's assertion that the veteran was diagnosed as having benign prostatic hypertrophy in 1991 is not probative or material as it relates to the nature of his prostate many years after his service separation and does not, in any way, establish that it is of service origin. III. Skin Condition In August 1987, the Board denied the veteran's claim of service connection for a skin condition. In denying service connection, it was indicated that the veteran's in-service skin problems were acute, transitory and resolved without sequelae. It was also noted that his post-service skin disability was not clinically demonstrated until years after his service separation in 1977. The relevant evidence of record at the time of the August 1987 Board decision included the veteran's DD Form 214 which, as reported earlier, shows that he served on active duty in the Republic of Vietnam. The veteran's service medical records reveal that, in July 1950, he was treated for a laceration on his left foot which was caused by a fungus infection. In August 1950, he was assessed as having a blister on his left foot. A July 1951 record shows that he was treated for a rash on his fingers. In April 1952, it was noted that he had a skin lesion on his left small finger. In May 1954, he was seen with complaints of itching on his skin and face. It was noted that this may have been caused by soap and water. A March 1964 record shows that he was assessed as having athlete's foot. In November 1968, he was seen with complaints of probable dermatitis on his penis. His April 1971 service retirement medical examination shows that a clinical evaluation of his skin was normal. In the accompanying Report of Medical History, he indicated that he had not had any skin diseases. Medical records, dated from September 1975 to December 1984, from Madigan AMC, show that the veteran was seen with complaints of a rash in February 1977. The assessment was possible shingles. Later that month, he reported that he had penile lesions. He also reported that he had been treated for penile lesions in 1964 and 1968. In October 1977, he underwent biopsies and was assessed as having granulomatous dermatosis, parakeratosis and acanthosis. VA outpatient treatment records, dated from June 1984 to October 1985, show that the veteran was assessed as having a recurrent rash in October 1985. On VA medical examination in April 1986, a clinical evaluation of the veteran revealed that he had multiple scars and two small ulcerated lesions beneath the foreskin of his penis. At the February 1987 hearing, the veteran testified that he had skin problems which began during his service in Vietnam in 1966. Relevant evidence added to the record since the Board's August 1987 decision includes copies of private medical records, dated from October 1971 to February 1985, which show that the veteran was assessed as having an occasional rash or dermatitis due to dust. They also show that, in November 1979, he reported that he had skin problems which began in 1966 in Vietnam. Medical records, dated from October 1977 to August 1997, from Madigan AMC, show that the veteran was assessed as having granulomatous dermatosis, parakeratosis and acanthosis in October 1977. At a January 1996 hearing, the veteran testified that he treated his dermatitis with ointment, but that he continued to experience some dermatological problems. He also testified that the skin on his penis sometimes became swollen. On VA agent orange examination in August 1997, the veteran was diagnosed as having bilateral posterior calf eczema, residual hyperpigmentation and keratosis of the right foot and status post recurrence of a penile rash not present. The Board finds that the veteran has not presented new and material evidence to warrant a reopening of his claim of service connection for a skin condition. In particular, while the private medical records are new, as they were not of record previously, they are not probative or material as they do not demonstrate that the rash and dermatitis are related to service or the skin problems for which he was treated therein. Rather, they show that they are related to post-service exposure to dust. Moreover, although they reflect that he reported that his skin problems began in 1966 in Vietnam, they are also cumulative as such concerns were known by the Board at the time of the prior denial. The medical records from Madigan AMC are cumulative as the Board was aware that the veteran had been assessed as having granulomatous dermatosis, parakeratosis in October 1977 at the time of the prior denial. The August 1997 VA agent orange examination report is new as it was not available for the Board's review at the time of the prior denial; yet, it is not probative or material as it relates to the nature of the veteran's skin condition years after his separation from service. In addition, it does not show that his skin condition was, in any way, related to service or the skin conditions for which he was treated therein. Thus, it is relevant only as to the nature of his skin disorder years after his service separation. IV. Additional Matters The Board notes that the veteran's testimony at his January 1996 hearing is new evidence in that it provides greater detail as to his belief that his diabetes mellitus, prostate disorder and skin condition were incurred in service; however, it is also essentially cumulative as such concerns were known at the time of the prior denial. Also, as a layman, he is not competent to give an opinion on matters requiring medical knowledge or experience, such as the etiology of his diabetes mellitus, prostate disorder and skin condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). To summarize, the Board finds the additional evidence that the veteran has submitted in support of his claims of service connection for diabetes mellitus, a prostate disorder and a skin condition is either cumulative of prior evidence, or neither competent nor probative of the material matters for which the claims were previously denied. The "new" evidence submitted is not "material" because by itself, or in connection with evidence previously assembled, it is not so significant that it must be considered to fairly decide the merits of the claims. Therefore, the Board finds that the evidence submitted is not new and material and the claims of service connection for diabetes mellitus, a prostate disorder and a skin condition are not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board has also considered the veteran's contentions regarding how his prostate disorder and a skin condition result from his exposure to Agent Orange during his period of active duty service in Vietnam. However, while it is undisputed that he served in Vietnam, he has not submitted any evidence of a diagnosis of a prostate disorder or skin condition for which service connection may be presumed due to an association with exposure to herbicide agents. See 38 C.F.R. 3.307(a)(6), 3.309(e). In addition, he has not submitted any competent medical evidence which shows that his prostate disability and skin condition are medically related to any in-service exposure to an herbicide agent. ORDER New and material evidence not having been submitted, the application to reopen a claim of service connection for diabetes mellitus is denied. New and material evidence not having been submitted, the application to reopen a claim of service connection for a prostate disorder is denied. New and material evidence not having been submitted, the application to reopen a claim of service connection for a skin condition is denied. J. F. Gough Member, Board of Veterans' Appeals