Citation Nr: 0003990 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-17 939 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a skin condition, including basal cell carcinoma. REPRESENTATION Appellant represented by: Roger W. Rutherford, Attorney at Law ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from September 1945 to August 1946. A March 1989 RO rating decision denied service connection for skin and lung conditions. The veteran was notified of these determinations in March 1989 and he did not appeal. RO rating decisions in May 1993 and April 1995 continued the denial of service connection for a skin condition, including basal cell carcinoma, and a lung disorder. The veteran disagreed with the determinations and he was sent a statement of the case in April 1995. He did not submit a timely appeal. In 1996, the veteran submitted an application to reopen claims for service connection for a skin condition, including basal cell carcinoma, and a lung disorder. He also submitted a claim for service connection for a gastrointestinal (GI) disorder. This appeal came to the Board of Veterans' Appeals (Board) from October 1996 and March 1997 RO decisions that determined there was no new and material evidence to reopen the claims for service connection for skin and lung conditions, and that denied service connection for a GI disorder. In December 1997, the Board determined that there was no new and material evidence to reopen the claims for service connection for a skin condition, including basal cell carcinoma, and a lung condition, and that the claim for service connection for a GI disorder was not well grounded. The veteran then appealed the December 1997 Board decision with regard to the issue of whether new and material evidence had been submitted to reopen the claims for service connection for a skin condition, including basal cell carcinoma, and a lung condition to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court). In an unopposed motion in February 1999, the veteran's attorney requested that the December 1997 Board decision with regard to the issue of whether new and material evidence has been submitted to reopen a claim for service connection for a skin condition, including basal cell carcinoma, be vacated and remanded to the Board for readjudication with consideration of the holding of the Federal Circuit in Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The veteran agreed to the dismissal of the issue regarding service connection for a lung condition. In a June 1999 order, the Court granted the unopposed motion from the veteran's attorney. In a September 1999 letter, the Board asked the veteran's attorney whether he wanted to submit additional argument and/or evidence. He was also advised that following receipt of his response or the end of a 90-day period, whichever came first, the case would be forwarded to a member of the Board for adjudication. A review of the record does not show the receipt of additional evidence or argument from the veteran. FINDINGS OF FACT 1. By unappealed RO rating decisions in May 1993 and April 1995, service connection for a skin condition, was denied. 2. Evidence received subsequent to the May 1993 and April 1995 RO rating decisions is not new and it is not of such significance that it must be considered in order to fairly decide the merits of the claim for service connection for a skin condition, including basal cell carcinoma. CONCLUSIONS OF LAW 1. The unappealed May 1993 and April 1995 RO rating decisions, denying service connection for a skin condition, are final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1999). 2. New and material evidence has not been received to reopen the claim for service connection for a skin condition, including basal cell carcinoma. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to establish service connection for a disability, the evidence must demonstrate the presence of it and that it resulted from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where a malignant tumor becomes manifest to a degree of 10 percent within one year from date of termination of active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for a disease based on exposure to ionizing radiation when there is medical evidence linking it to such incident. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). In the absence of competent medical evidence linking a disability to service, diseases specific to radiation-exposed veterans, such as various forms of cancers, listed under 38 C.F.R. § 3.309(d) (1999) will be presumed to have been incurred in active service if the veteran participated in a "radiation risk activity" such as onsite participation in an atmospheric nuclear test. 38 C.F.R. § 3.309(d)(3)(ii). Other "radiogenic" diseases, such as any form of cancer, listed under 38 U.S.C.A. § 1112(c)(2) and 38 C.F.R. § 3.311(b), found 5 years or more after service in an ionizing radiation exposed veteran may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. For the purposes of "radiogenic" diseases found in 38 C.F.R. § 3.311(b)(2), bone cancer must become manifest within 30 years after exposure; leukemia may become manifest at any time after exposure; and posterior subcapsular cataracts must become manifest 6 months or more after exposure. 38 C.F.R. § 3.311(b)(5). An appeal consists of a timely filed notice of disagreement and, after issuance of a statement of the case, a timely filed substantive appeal. 38 C.F.R. § 20.200. The May 1993 and April 1995 RO rating decisions determined that service connection was not warranted for a skin condition and the veteran submitted a notice of disagreement with this determination. The RO sent him a statement of the case on this issue, but the veteran did not complete the appeal with the submission of a substantive appeal. 38 C.F.R. §§ 20.202, 20.302(b) (1999). Since the veteran did not submit a timely substantive appeal to the May 1993 and April 1995 RO rating decisions, denying service connection for a skin condition, those decisions are final with the exception that a claimant may later reopen the claim if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 3.160(d), 20.302, 20.1103. The question now presented is whether new and material evidence has been submitted since the May 1993 and April 1995 RO ratings to permit reopening of the claim. Manio v. Derwinski, 1 Vet. App. 140 (1991). For evidence to be deemed new, it must not be cumulative or redundant; to be material, it must bear directly and substantially upon the specific matter under consideration (here, whether the veteran's basal cell carcinoma is causally related to exposure to ionizing radiation in service). For evidence to be new and material it must be of such significance that, alone or with the other evidence of record, it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Following the Federal Circuit's decision in Hodge, the Court had the opportunity to discuss the relationship between determinations of new and material evidence to reopen and those of well-groundedness. Elkins v. West, 12 Vet. App. 209 (1999). The Court also noted that, in rejecting the Colvin reasonable-possibility-of-outcome-change test, Hodge effectively decoupled the existing relationship under the Court's case law between determinations of well-groundedness and of new and material evidence to reopen. Prior to Hodge, no opinion of the Court ever suggested that evidence that was sufficient to reopen might not be sufficient to well ground a claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993) (quoting Gober v. Derwinski, 2 Vet. App. 470, 472 (1992)) (new and material evidence "is, by its nature, well[]grounded"); Robinette v. Brown, 8 Vet. App. 69, 76 (1995) (a lower evidentiary threshold is applicable to determining whether a claim is well grounded); Edenfield v. Brown, 8 Vet. App. 384, 390 (1995) (the difference, if any, between the evidence necessary to present a well-grounded ("plausible") claim and that needed to satisfy the third new-and-material evidence requirement ("reasonable possibility") is slight). Consequently, if upon remand the Board determines that new and material evidence has been presented, it next must determine, as part of its "review [of] the former disposition of the claim" under section 5108, whether the veteran's claim, as then reopened, is well grounded in terms of all the evidence in support of the claim, generally presuming the credibility of that evidence. In this regard, the Court noted that, as outlined in Winters v. West, 12 Vet. App. (1999), issued by the Court concurrently with the Elkins opinion, if the Court on review of all the evidence of record in support of the claim were to determine that the veteran's underlying claim was not well grounded, the Court would not remand for the Board to apply 38 C.F.R. § 3.156(a) and Hodge because the failure to apply the regulation under such circumstance would not be prejudicial to the veteran. The evidence of record at the time of the May 1993 and April 1995 RO rating decisions consisted of statements from the veteran that he had skin problems, including basal cell carcinoma, due to exposure to ionizing radiation in 1946 while in service; service documents and a letter from the Defense Nuclear Agency to the effect that the veteran had received no more than 0.019 rem gamma while serving on an ex- Japanese battleship during Operation CROSSROADS, a U.S. atmospheric nuclear test series conducted at Bikini Atoll during July and August 1946; VA, private, and service medical records that did not show the presence of skin problems, including basal cell carcinoma, until many years after service and did not relate a skin condition to an incident of service, including exposure to ionizing radiation; and an opinion from the VA Under Secretary for Health to the VA Under Secretary for Benefits that it was unlikely that the veteran's basal cell carcinoma could be attributed to exposure to ionizing radiation in service. The evidence submitted since the May 1993 and April 1995 RO rating decisions includes additional statements from the veteran to the effect that he was exposed to ionizing radiation while serving on board a ship during Operation CROSSROADS in 1946 while in service, and that he has skin problems, including basal cell carcinoma, that are related to this incident. This evidence is, in large part, repetitive of prior statements from the veteran, and not new. Reid v. Derwinski, 2 Vet. App. 312 (1992). Nor does the veteran have the competence, as a layman, to offer a medical opinion on the etiology of his lung problems. Espiritu v. Derwinski, 2 Vet. App. 492. Evidence submitted since the May 1993 and April 1995 RO rating decisions also include VA medical reports of the veteran's treatment for various conditions from 1993 to 1996, including skin problems. These records are cumulative of evidence of record in April 1995, and not new. 38 C.F.R. § 3.156(a). Nor do these records link the veteran's skin problems, including basal cell carcinoma, to an incident of service, including exposure to ionizing radiation. Hence, these medical reports are not new and material because they are not of such significance that, alone or with the other evidence of record, they must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); Hodge, 155 F. 3d 1356. As no new and material evidence has been submitted, there is no basis to reopen the claim for service connection for a skin condition, including basal cell carcinoma, and the May 1993 and April 1995 RO rating decisions remain final. ORDER The application to reopen the claim for service connection for a skin condition, including basal cell carcinoma, is denied. J. E. Day Member, Board of Veterans' Appeals