Citation Nr: 0604479 Decision Date: 02/16/06 Archive Date: 02/28/06 DOCKET NO. 03-22 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for eczematous dermatitis on both hands, currently rated as 10 percent disabling. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for pes planus. 3. Entitlement to service connection for pes planus. 4. Entitlement to service connection for prostatitis. 5. Entitlement to service connection for vertigo with dizziness and nausea. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The veteran had active service from February 1941 to November 1944. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Houston, Texas, VA Regional Office (RO). The issues of entitlement to an increased rating for eczematous dermatitis on both hands, currently rated as 10 percent disabling, entitlement to service connection for pes planus, entitlement to service connection for prostatitis, and entitlement to service connection for vertigo with dizziness and nausea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for pes planus was denied in an April 1948 rating decision. The veteran did not appeal. 2. The evidence added to the record since the April 1948 rating decision is new and probative to the issue at hand. CONCLUSION OF LAW The April 1948 rating decision denying service connection for pes planus is final. Evidence submitted since that decision is new and material. 38 U.S.C.A. §§ 5108, 7105(a), (b) and (c), 7108; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302(a) (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that any defect in regard to VCAA is harmless error as the claim is herein reopened. Criteria A claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim, which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). When the AOJ has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105. If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed except as may be provided by regulations not inconsistent with this title. 38 U.S.C.A. § 7105. See 38 C.F.R. §§ 20.200, 20.201, 20.1103. The Board notes that the legal standard of what constitutes "new and material" evidence was recently amended. This amendment is applicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001. 38 C.F.R. § 3.156(a) (2005). New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2005). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The issue of service connection for pes planus was previously denied in April 1948. That decision is final. If new and material evidence is presented or secured with respect to a claim that has been disallowed, however, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. At the time of the prior decision, the record included the service medical records, statements from the veteran, and post service VA medical records. The evidence was reviewed and service connection for pes planus was denied. 38 U.S.C.A. § 7105. Service medical records show pes planus was noted at service entrance. The prior rating decision specifically noted that there was no evidence that pes planus was aggravated during service. Since that determination, the veteran has applied to reopen his claim for entitlement to service connection for pes planus. The evidence submitted since the prior final decision in April 1948 is new and material. In a letter received in July 2003, the veteran's private physician, Dr. A. B. M., stated that wearing tight combat boots during service could have aggravated the veteran's pes planus. At the time of the prior denial, there was an absence of favorable evidence addressing the question of whether there had been an increase in severity or aggravation. The new evidence, when accepted as true for the purpose of reopening addresses a previously unestablished fact. The evidence is new, material and the claim is reopened. ORDER The application to reopen a claim of entitlement to service connection for pes planus is granted. REMAND In correspondence received at the Board in November 2005, the veteran indicated that he desired the American Legion to represent him. The power of attorney of record is in favor of the Texas Veterans Commission. There is no power of attorney for the American Legion. During service, the skin disorder was variously classified to include eczema and a chronic unqualified dermatitis of both arms. The VA examination, in 2002, seemed to limit the examination to the hands and did not estimate the total area of involvement. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, these issues are REMANDED to the agency of original jurisdiction (AOJ) for the following development: 1. The AOJ should request that the veteran provide a power of attorney in favor of the American Legion. 2. The AOJ should schedule the veteran for an adequate skin examination of the veteran. The claims file should be made available to the examiner so that he/she can determine the nature of the service- connected disability. The examiner should prepare a report that fully describes the manifestations of the service-connected disability and complies with the rating criteria, including estimating total area of involvement. 3. The AOJ should schedule the veteran for an examination of the prostate. The examiner should determine whether there is a current prostate disability and if present whether there is a relationship to the in-service manifestations. 4. The AOJ should schedule the veteran for an examination of the feet. The examiner should explain the meaning of grade 3 pes planus and determine whether there was an increase in severity during service. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs