Single Judge Application, Anderson v. West, 12 Vet.App., Claim File Request, 38 U.S.C. § 5701(b)

Excerpt from decision below:
"Finally, the appellant argues that VA erred by not sending him his claims file as he requested. See Anderson v. West, 12 Vet.App. 491, 494-95 (1999) (noting Secretary's duty to provide claimant documents within his custody upon request); see also 38 U.S.C. § 5701(b) (requiring the Secretary to disclose documents to a claimant under certain circumstances)."

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-3342
QUENTIN L. BRENSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN,Judge: The prose appellant,Quentin L. Brenson, appeals a September 3,2008,
Board of Veterans'Appeals (Board)decisionthatdeniedhisrequest to re-open a
claim of entitlement
to service connection for a dental disability due to impacted wisdom teeth
and denied service
connection for a nervous disorder, to include as secondary to a dental
disability due to impacted
wisdom teeth.1
The appellant filed an informal brief, and the Secretary filed a brief.
The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
September 2008 Board
decision. A single judge may conduct this review because the outcome in
this case is controlled by
theCourt'sprecedentsand"isnot reasonablydebatable." Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the following reasons, the Court will affirm the Board's
September 2008 decision.
In a letter to VA, the appellant stated that the side effects of his tooth
condition included a "nervous disorder."
Record (R.) at 572. The appellant testified before the Board that he was
not referring to a psychiatric disorder, but a
physical problem with his nerves. R. at 23-24. For clarity, the Court will
refer to this claimed condition as a "nerve
disorder."
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I. BACKGROUND
Mr. Brenson served on a period of active dutyfor training with the U.S.
ArmyReserves from
August 1994 to January 1995. R. at 675, 699. On January 4 and 6, 1995, Mr.
Brenson received
dental treatment on tooth #18, which was broken, from an Army dentist.2
R. at 159.
In January2004, Mr. Brenson filed a claim for service connection for a "
severe problem with
wisdom teeth" (R. at 679-86), which a VA regional office (RO) denied in
April 2004 (R. at 622-26).
The RO explained that there was no evidence regarding observation,
treatment, or diagnosis of
wisdom teeth in service, and there was no evidence generally, other than
Mr. Brenson's statements,
regarding his wisdom teeth. R. at 624. Mr. Brenson filed a Notice of
Disagreement (R. at 611), the
RO issued a Statement of the Case (R. at 599-607, 584-96), but Mr. Brenson
did not file a timely
Substantive Appeal, and the April 2004 denial became final.
In July 2005, Mr. Brenson requested that his claim be reopened. R. at 573.
In August 2005,
he stated that he suffered from "multiple cases of impacted teeth. The
side effects of this are severe
nervous disorder which can be heard in my voice." R. at 572. He also
stated: "While on active duty
one of my second molars broke as a result of this problem." Id.
In May 2006, Mr. Brenson submitted a request for his "Personal File." R.
at 536. In
response, the RO sent Mr. Brenson his "Entire Claims File/Service Medical
Records." R. at 532.
In July 2006, the RO reopened Mr. Brenson's claim for entitlement to
service connection for
his tooth condition and denied it on the merits and denied his claim for a "
nervous" condition
associated with his tooth condition. R. at 162-67. Mr. Brenson appealed
that decision to the Board.
In January 2008, Mr. Brenson testified before a Board member. R. at 16-29.
When asked
whether he had ever sustained an injury to his face in service, Mr.
Brenson responded in the
negative. R. at 21-22. Mr. Brenson also testified that his claim for a "
nervous condition" was one
referring to a physical nerve problem and not a psychiatric condition. R.
at 23-24.
In the September 3, 2008, decision here on appeal, the Board found that
new and material
evidence had not been received to reopen the previously disallowed claim
of entitlement to service
Tooth #18 is a "second molar." The Merck Manuals Online Medical Library,
http://www.merckmanuals.com/
teeth are not second molars, but third
molars. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1964 (31st ed. 2007).
2
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connection for a dental disability and denied service connection for a
nerve disorder. R. at 8-13.
The appellant argues that (1) the Board failed to review certain dental
records that would
have supported his claim for a dental disability; (2) VA erred by not
sending him his claims file as
he requested; and (3) VA should have adjudicated his claim under "Chapter
38" §§ 610 and 110.
In response, the Secretary argues that this Court should affirm the Board
decision because the Board
had a plausible basis in the record for its decision and supported its
decision with an adequate
statement of reasons or bases. Secretary's (Sec'y) Br. at 5.
II. ANALYSIS
A. Dental Disability
Pursuant to 38 U.S.C. § 5108, "[i]f 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." 38 U.S.C. § 5108. "New evidence means
existing evidence not
previously submitted to agency decisionmakers." 38 C.F.R. § 3.156(a) (
2010). "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." Id. "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.; see Shade v. Shinseki, 24 Vet.App. 110, 118 (2010) ("[T]he
determination of whether
newly submitted evidence raises a reasonable possibility of substantiating
the claim should be
considered a component of the question of what is new and material
evidence, rather than a separate
determination to be made after the Board has found that evidence is new
and material.").
The Court reviews whether an appellant has submitted new and material
evidence to reopen
a previously denied claim under the "clearly erroneous" standard of review.
Shade, 24 Vet.App. at
118 (citing Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc)). "A
factual finding 'is clearly
erroneous when although there is evidence to support it, the reviewing
court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.'" Hersey v.
Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United
States Gypsum Co., 333 U.S.
364, 395 (1948)). The Court may not substitute its judgment for the
factual determinations of the
3


Board on issues of material fact merely because the Court would have
decided those issues
differently in the first instance. Id.
In the case currently before the Court, the RO in April 2004 denied the
appellant's claim for
serviceconnection fora tooth conditiondueto
impactedwisdomteethbecausetheclaimeddisability
did not occur in service nor was it caused by service. R. at 624; see R.
at 9. Since that decision, the
appellant has submitted various statements and testimony regarding his
wisdom teeth. E.g., R. at
16-29, 60, 151-52, 572, 582, 611. The appellant also provided medical
records. R. at 57, 89-92,
330. The RO also obtained Social SecurityAdministration (SSA) records. R.
at 169-283, 295-530.
Thestatements,testimony,medicalrecords,andSSA
documentsallqualifyasnewevidencebecause
they were not previously in the record before the agency. However, the
Board found the evidence
added to the record since the April 2004 RO rating decision to be
cumulative and redundant of the
evidence previouslyconsidered bythe RO. R. at 10. The Board also found no
material evidence that
would support a finding that the appellant sustained dental trauma in
service, a fact it deemed
necessary to establish service connection. Id.; see 38 C.F.R. § 3.381(e)(
3) (providing that "[t]hird
molars" (wisdom teeth) cannot be considered service connected for
treatment purposes "unless the
pathology of the tooth developed after 180 days or more of active service,
or was due to combat or
in-service trauma"); see Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010
) (discussing service
"trauma"). The appellant did not have 180 days of active service. R. at
675. The Court has
reviewed all the evidence of record. Based on that review, the Court
concludes that the Board did
not err in finding no new and material evidence, as defined by38 C.F.R. §
3.156, sufficient to reopen
the appellant's claim for a tooth condition or dental disability due to
impacted wisdom teeth.
B. The Appellant's Remaining Arguments Regarding a Dental Disability
The appellant argues that (1) the Board failed to review certain dental
records that would
have supported his claim for a dental disability; (2) VA should have
considered "Chapter 38" §§ 110
and 610; and (3) VA erred by not sending him his claims file as he
requested. For the following
reasons, the Court concludes that these arguments are without merit.
The appellant argues that the Board failed to review certain dental
records that would have
supported his claim for a dental disability. The appellant did not
identify any records, dental or
otherwise, the Board purportedly failed to review. The Board, for its part,
specifically stated: "The
4


Board has reviewed all the evidence in the appellant's claims file." R.
at 7. Furthermore, absent
specific evidence indicating otherwise, the Board is presumed to have
reviewed all the evidence in
the record at the time of its determination. Newhouse v. Nicholson, 497 F.
3d 1298, 1302 (Fed. Cir.
2007) (citing Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)).
The Court has reviewed
the record of proceedings in its entirety and concludes there is no merit
to the appellant's claim that
the Board failed to review certain dental records that support his claim
for a dental disability.
The appellant argues that VA should have considered "Chapter 38" §§ 110,
610. The Court
interprets this argument to mean the Board failed to consider 38 U.S.C. §§
110, 610 or 38 C.F.R.
§§ 110, 610. See 38 U.S.C. § 7104(a) (requiring Board to consider all
applicable provisions of law
and regulation). The Secretary argues that these sections are not
applicable or do not exist. Sec'y
Br. at 12-13. The Court agrees. Section 110 of title 38, U.S. Code,
addresses the circumstances
under which a disability rating in effect for twenty years or more may be
reduced. Because the
appellant has no disabilities subject to service connection, section 110
is inapplicable. Title 38 of
the Code of Federal Regulations does not include a § 110. And neither
title 38 of the Code of
Federal Regulations nor title 38 of the U.S. Code contains a section 610.
The Court concludes that
the Board did not err in not considering any of these provisions.
Finally,theappellantargues that VA erred bynot sendinghim his
claimsfileasherequested.
See Anderson v. West, 12 Vet.App. 491, 494-95 (1999) (noting Secretary's
duty to provide claimant
documents within his custody upon request); see also 38 U.S.C. § 5701(b) (
requiring the Secretary
to disclosedocumentstoaclaimantundercertaincircumstances).
Theappellantrequestedhis claims
file on May 2, 2006, from the Milwaukee, Wisconsin RO. R. at 536. The
request did not list a
return address. Id. VA sent a copy of the "Entire Claims File/Service
Medical Records"
approximately two weeks later to the Milwaukee address previously used by
VA in correspondence
prior to May 2006. R. at 532; see e.g. R. at 563. The appellant had listed
this address in a prior
submission to VA. R. at 573 (the appellant's July 2005 Statement in
Support of Claim). As the
Secretarynotes, there is no indication in the record that VA did not
actuallysend the claims file other
than the appellant's allegations. Sec'yBr. at 12. Furthermore, "[t]here is
a presumption of regularity
under which it is presumed that government officials properly discharge
their official duties in good
faith and in accordance with law and governing regulations." KyhnNext Document v.
Shinseki, 24 Vet.App. 228,
5


232 (2011) (citing Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992)).
This presumption "may
be overcome only by 'clear evidence to the contrary.'" Id. (quoting Ashley,
2 Vet.App. at 309). The
Court further notes that the appellant was provided a copy of the Record
Before the Agency in
February 2009 at the same Milwaukee address. Upon review of the record
before the Court, and in
light of the specific documents mentioned above, the Court concludes that
the appellant's argument
regarding his claims file is without merit.
C. Nerve Disorder
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12
Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A claimant
may establish service
connection on a secondary basis by demonstrating that the disability is
either (1) proximately due
to or the result of an already service-connected disease or injury, or (2)
aggravated by an already
service-connected disease or injury. See Allen v. Brown, 7 Vet.App. 439,
448 (1995) (en banc);
38 C.F.R. § 3.310(b). A finding of service connection, or no service
connection, is a finding of fact
reviewed under the "clearly erroneous" standard found in 38 U.S.C. § 7261(
a)(4). See Swann
v. Brown, 5 Vet.App. 229, 232 (1993).
In the decision here on appeal, the Board denied the appellant's claim for
a nerve disorder as
secondary to his dental disability due to impacted wisdom teeth on the
grounds that service
connection for the latter injuryhad not beenestablished. TheBoard did not
errin this determination.
See 38 C.F.R. § 3.310.
The Board also denied service connection for a nerve disorder on a direct
basis. However,
the appellant has abandoned any claim of direct service connection on
appeal because he is
contending that the nerve condition was caused by his tooth condition and
makes no argument that
he is entitled to service connection for a nerve condition on a direct
basis. Thus, the Court considers
any appeal of the claim on a direct basis to have been abandoned. See Ford
v. Gober, 10 Vet.App.
531, 535 (1997) (holding that claims not argued on appeal are deemed
abandoned).
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III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's September 3, 2008, decision denying the appellant's request to
reopen his claim for a
dental disability due to impacted wisdom teeth and request for entitlement
to service connection for
a nerve disorder as secondary to a dental disability due to impacted
wisdom teeth is AFFIRMED.
DATED: March 31, 2011
Copies to:
Quentin L. Brenson
General Counsel (027)
7