Citation Nr: 0506904 Decision Date: 03/10/05 Archive Date: 03/21/05 DOCKET NO. 03-33 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for skin cancer, removal of tumors, as a result of exposure to Agent Orange. REPRESENTATION Veteran represented by: Arizona Veterans Service Commission ATTORNEY FOR THE BOARD T. Hal Smith INTRODUCTION The veteran served on active duty for over 21 years, including service in Vietnam, before his retirement in June 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of December 2002 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The issue on appeal is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In March 1995, the RO denied entitlement to service connection for skin cancer, removal or tumors, as a residual of Agent Orange exposure; the veteran was notified of his procedural rights in an April 1995 letter; however, he did not appeal the decision. 2. Evidence submitted since the March 1995 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence to reopen the claim of entitlement to service connection for skin cancer, removal of tumors, as a result of exposure to Agent Orange, has been received. 38 U.S.C.A. §§ 5104, 5018, 715 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA: Duties to Notify and Assist The President signed into law the Veterans Claims Assistance Act of 2000 (VCAA) on November 9, 2000. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). These regulations establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits. As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims, or something to the effect that the claimant should give us everything you've got pertaining to your claims. The discussions in the rating decision, statement of the case (SOC), and supplemental statement of the case (SSOC) have informed the claimant of the information and evidence necessary to warrant entitlement to the benefits sought. The Board notes here that the VCAA letter was sent to the veteran in May 2002, before the initial rating decision in December 2002. Moreover, the May 2002 VCAA letter, May 2003 SOC, another VCAA letter in November 2002, and July 2004 SSOC specifically advised him as to what evidence the RO had in its possession and what evidence was still needed. Specifically, the VCAA letters and the May 2003 SOC notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency, including VA, Vet Center, service department, Social Security, and other federal agencies. He was advised that it was his responsibility to either send medical treatment records from any private physician regarding treatment, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. The Board therefore finds that the notice requirements of the new law and regulation have been met. There has also been substantial compliance with the assistance provisions set forth in the new law and regulation. The record in this case includes service medical records, VA medical records, VA examination reports, private medical records, and statements from the veteran. VA made all reasonable efforts to assist the claimant in the development of the claim and notified the veteran of the information and evidence necessary to substantiate the claim. There is no indication of any relevant records that the RO failed to obtain. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). The evidence of record is sufficient to make a decision without obtaining additional VA examination. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the earlier effective date issue is required to comply with the duty to assist under the VCAA. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. New and Material A review of the claim file reflects that the veteran's claim for service connection for a skin condition as a residual of exposure to Agent Orange was denied on numerous occasions. Service connection for a cyst and voice box trouble as a residual of Agent Orange exposure was denied in December 1984. In January 1986, seborrhea dermatitis as a residual of Agent Orange exposure was denied. That denial was confirmed in an April 1994 decision. As to the current claim, in March 1995, the RO denied the veteran's claim for service connection for skin cancer/removal of tumors, as a residual of Agent Orange exposure. The claim was denied on the basis that the record did not show a diagnosis of skin cancer. The veteran was notified of this decision in April 1995. He was provided with information as to his procedural and appellate rights. He did not appeal this decision and it is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2004). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002). Effective from August 29, 2001, the regulations defining "new and material evidence" were revised and clarify the types of assistance the VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(b). These specific provisions are applicable only to claims filed on or after August 29, 2001. As the veteran filed his claim seeking to reopen in May 2002, the Board has considered these provisions. To reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). Under the amended regulations, 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) (2004). The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board. Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Here, the Board notes that the RO did not reopen the veteran's claim for service connection for skin cancer, removal of tumors. The Board disagrees. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered at the time of the final denial in 1995 included the veteran's claim, his service medical records, and post service private and VA treatment records dated from the end of military service through 2002. As noted earlier, the basis of the denial was that the record was negative for evidence of diagnosis of skin cancer. The evidence associated with the claims file subsequent to the RO's 1995 decision includes VA treatment records dated in 2001 and 2002 which reflect treatment for a basal cell carcinoma of the right ear and evaluation of a left shoulder scar and a scar on the right hand/wrist. Color photographs of these areas from an October 2002 VA examination have been added to the claims file. Also added to the record was a statement by the veteran in July 2002 in which he said that he had been treated for a variety of skin diseases including throat lesions and cancer of the right ear and cancer causing skin rashes. He reported treatment since 1972 and through the 1980s and 1990s. He pointed out that he had had surgery on his ear in 2001. It is the Board's conclusion that the 2001 and 2002 treatment records are new and material. They were not previously of record at the time of March 1995 rating decision. They are not cumulative of prior medical records because they indicate that the veteran has been diagnosed as having skin cancer, a diagnosis that had not been made at the time of the 1995 rating determination. This evidence is relevant and probative and raises a reasonable possibility of substantiating the claim. The evidence is presumed credible, bears substantially upon the specific matters under consideration as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Consequently, the claim is reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for skin cancer, removal of tumors, is reopened; to this extent only, the appeal is granted. REMAND The Board has determined that new and material evidence was presented to reopen the claim for service connection for skin cancer, removal of tumors, as a residual of exposure to Agent Orange. Therefore, the claim should be readjudicated on a de novo basis at the RO level. The Board observes that additional due process requirements may be applied as a result of the enactment of the Veterans Claims Assistance Act and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is REMANDED for the following: 1. Review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) with respect to service connection for skin cancer and removal of tumors. Such notice should specifically apprise him of the evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information, and of the appropriate time limitation within which to submit any evidence or information. Request that he provide any evidence in his possession that pertains to the claim as explicitly required by 38 C.F.R. § 3.159(b). 38 U.S.C.A. § 5103(a) and (b) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A record of his notification must be incorporated into the claims file. 2. Schedule the veteran for a VA examination to address the nature and etiology of the veteran's skin cancer and removal of tumors. After reviewing the claims file and examining the veteran, the examiner should provide an opinion as to whether it is as likely as not that the veteran's skin cancer and removal of tumors was related to his service to include exposure to Agent Orange. The opinion should be based on the facts of the case and sound medical principles. 3. The issue of entitlement to service connection for skin cancer, removal of tumors should be readjudicated. If the requested benefit is not granted, a supplemental statement of the case (SSOC) should be furnished. The SSOC must contain notice of all applicable criteria pertinent to the appellant's claim on the issue of service connection. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs