Citation Nr: 0810161 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-25 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to establish entitlement to service connection for a left foot dorsum soft tissue mass. 2. Whether new and material evidence has been submitted to establish entitlement to service connection for residuals of right heel and ankle pressure sores. REPRESENTATION Appellant represented by: Thomas J. Reed, Susan Saidel, Attorneys - Widener University School of Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The veteran served on active duty from August 1965 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied the benefits sought on appeal. The veteran appeared before the undersigned Acting Veterans Law Judge and testified regarding his syptomatology. A transcript is of record. FINDINGS OF FACT 1. By a May 1982 Board decision, the veteran's claim for entitlement to service connection for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores was denied; the veteran did not appeal this decision. 2. The evidence associated with the claims file subsequent to the May 1982 Board decision does not relate to an unestablished fact necessary to substantiate the claim for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores and does not raise a reasonable possibility of substantiating the claim. [Continued on Next Page] CONCLUSIONS OF LAW 1. The Board's May 1982 decision, denying entitlement to service connection for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). 2. Evidence received since the final May 1982 Board decision denying the veteran's claim of entitlement to service connection for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores is not new and material, and the veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7104 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of a letter from the RO to the veteran dated in September 2004. This letter effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claims. Additionally, a February 2007 letter informed the veteran of how the RO assigns disability ratings and effective dates if a claim for service connection or an increased rating is granted and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service treatment records, VA medical treatment records, private treatment records, and lay statements are associated with the claims file. The veteran was not afforded a VA examination. Counsel for the veteran contended in a December 2007 brief that the veteran was entitled to a new compensation and pension examination to "fully develop the issue of service connection." However, because the application to reopen his claim is presently denied, VA's duty to assist has not attached and there is no basis upon which to direct a medical examination. 38 U.S.C.A § 5103A(d),(g); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (Holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet.App. 542 (1996) (Holding that unless new and material evidence has been submitted, the duty to assist does not attach); see also Woehlaert v. Nicholson, 21 Vet.App. 456 (Holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.) The Board also notes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims held that when a veteran seeks to reopen a previously denied claim, VA must examine the bases for the denial in the prior decision and advise the veteran what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. This notification obligation was accomplished by way of letters from the RO to the veteran dated in September 2004 and February 2007. Finally, in a December 2007 brief, the veteran's counsel indicated that a post decision review hearing was requested but not provided. The evidence of record indicates that in a letter dated February 2005, which was received by the RO February 13, 2006, a VAP legal intern indicated that the veteran was electing to use the post decision review process and submitted an appeal process election form signed by the veteran in February 2006, in which the veteran elected to use the post decision review process with a decision review officer. A hearing was not specified in the letter or on the appeal process election form. Subsequently, a decision review officer reviewed, prepared, and signed the statement of the case in June 2006. The veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claim. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. The Merits of the Claims The veteran filed a claim of service connection for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores which were denied in a May 1982 Board decision. The veteran was apprised of the Board decision, but he did not appeal. Thus, the denial is final, and the merits of the claim (i.e., whether service connection may be granted for the claimed left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores) may not be examined unless the veteran submits "new and material" evidence sufficient to reopen the claim. 38 U.S.C.A. §§ 7252, 7266; 38 C.F.R. § 20.1100. In August 2004, the veteran requested to reopen his claim of service connection for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores. Therefore, the veteran's current claim is one for the reopening of a previously denied claim and requires the submission of new and material evidence. In a June 2005 rating decision, the RO denied the veteran's claim. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. At the time of the May 1982 Board decision that denied service connection for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores, the evidence of record consisted of service treatment records, VA medical records, Social Security documentation, private medical records, and statements by the veteran. Subsequently, additional lay statements from the veteran, hearing testimony, Social Security documentation, and private medical records have been associated with the claims file. The evidence submitted subsequent to the May 1982 rating decision is new, in that it was not previously of record. However, the newly submitted evidence is not material. Initially, the claim for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores was denied in the May 1982 Board decision as there was no evidence of an aggravation of pre-existing conditions of both the left and right foot and ankle. Although the evidence submitted since the final May 1982 decision demonstrates treatment and diagnosis of a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores, the documents submitted by Dr. W. M. U. provide no evidence of aggravation of pre-existing disorders of either the left or right foot. The document stated there is a deformed lesion on the posterior heel, without specifying which foot, secondary due to injury while in the Armed Forces, and a need for care of the right heel to prevent further irritation and break down secondary to scaring of the right heel, but does not provide a rationale or bases for his opinion. There was no indication in the letter that the physician reviewed the service medical records. A medical conclusion predicated wholly on lay history cannot be new and material. While a physician is competent to render medical opinions, such competence does not extend to the factual underpinnings of the opinion. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. The evidence submitted does not relate to an unestablished fact necessary to substantiate the claim. Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). (Observing that evidence of the appellant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). Although the veteran maintains that the disorders were incurred in service and testified before the Board in December 2007, his theory regarding this linkage is not competent evidence. It is well-established that laypersons, such as the veteran, are not qualified to render medical opinions regarding the etiology of disorders and disabilities, and his opinion is entitled to no weight. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Therefore, the veteran's testimony is repetitive of statements made which were previously considered by VA, and are therefore not new. Thus, the additional evidence received since the May 1982 rating decision does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection for a left foot dorsum soft tissue mass and residuals of right heel and ankle pressure sores is not reopened. ORDER New and material evidence has not been submitted and the application to reopen the claim of entitlement to service connection for left foot dorsum soft tissue mass is denied. New and material evidence has not been submitted and the application to reopen the claim of entitlement to service connection for residuals of right heel and ankle pressure sores is denied. ____________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs