Citation Nr: 0810839 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-40 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen claims for service connection for left elbow arthritis and osteomyelitis of the left tibia and humerus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from August 1945 until January 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board notes that the United States Court of Appeals for the Federal Circuit, in Boggs v. Peake, 2007-7137 (Fed. Cir. Mar. 26, 2008), recently found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Essentially, claims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims. The veteran has neither claimed nor submitted evidence of any new diagnoses for new claims. As such, the current claims will be considered on the basis of new and material evidence and not as separate and distinct claims. The veteran also submitted a claim, in an April 2005 statement, for non-service-connected pension. However, this matter is not before the Board because it has not been prepared for appellate review and is referred to the RO for appropriate action. The veteran's reopened claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a March 1957 decision, the Board severed service connection for osteomyelitis and arthritis of the left upper extremity. 2. The evidence associated with the claims file since his denial relates to an unestablished fact necessary to substantiate the claim for osteomyelitis and arthritis of the upper extremity. CONCLUSIONS OF LAW 1. The Board's March 1957 decision is final. § 7103(a)(West 2002); 38 C.F.R. § 20.1100 (2007). 2. Evidence received since the March 1957 Board decision is new and material; the claim of entitlement to service connection for osteomyelitis and arthritis of the upper extremity is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the claims for service connection for left elbow arthritis and osteomyelitis of the left tibia and humerus. This is a complete grant of the benefits sought on appeal. Thus, a discussion of VA's duties to notify and assist is unnecessary. The veteran seeks to reopen previously denied claims for service connection for left elbow arthritis and osteomyelitis of the left tibia and humerus. A review of the record indicates that the veteran was previously granted service connection for left elbow arthritis and osteomyelitis of the left tibia and humerus in a February 1946 rating decision. In a March 1957, the Board severed service connection. The veteran and his representative maintain that the law has changed regarding the evidentiary standard for rebutting the statutory presumption of soundness. See VAOPGCPREC 3-2003. The first matter for the Board's consideration is whether this change is a substantive change in the law creating a new cause of action. See Spencer v. Brown, 4 Vet. App. 283 (1993) (where there is an intervening change in law or regulation that creates a new basis of entitlement to the benefit, the claim may be reviewed on a de novo basis). It appears from the jurisprudence of the Court that this change in the law was procedural and was not substantive in nature. It does not create a new cause of action warranting a de novo review of the veteran's claim. In addition, the statutory presumption of soundness is a rule of law for handling evidence and it is not itself considered to be evidence. Thus, a change that raises the government's evidentiary burden to rebut the presumption of sound condition may not constitute new and material evidence to reopen a finally decided claim. Kent v. Nicholson, 20 Vet. App. 1, 7-8 (2006). A disallowed claim shall be reopened and reviewed, if new and material evidence is presented or secured with respect to the final claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. In his attempt to reopen the claim, the veteran has filed lay statements, including one in November 2004 claim, that have essentially indicated that his claimed left elbow and left tibia and humerus disorders are currently evident and have worsened since service. The Board notes that his service connection was previously severed, at least in part, on the basis of the negative findings of a VA examination for his disorders, and finds the newly associated evidence to have not been previously submitted and to relate to an unestablished fact necessary to substantiate his claim. Thus, the Board finds that the claim for service connection is reopened. ORDER New and material evidence has been submitted and the application to reopen the claims for entitlement to service connection for left elbow arthritis and osteomyelitis of the left tibia and humerus; to this extent only, the appeal is granted. REMAND The veteran seeks to reopen previously denied claims for service connection for left elbow arthritis and osteomyelitis of the left tibia and humerus. The veteran has essentially reported difficulty with his left elbow and left tibia and humerus following service. The Board concludes that on remand the veteran must be afforded an examination to allow for a complete review of his claims. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset and etiology of any left tibia, left humerus, and/or left elbow disorders found to be present. All indicated studies should be performed, and all findings should be reported in detail. The claims files should be made available to and reviewed by the examiner. The examiner should state the likelihood that any left tibia, left humerus, and/or left elbow found to be present existed prior to service. If the examiner concludes that any left tibia, left humerus, and/or left elbow disorder found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the veteran as having a left tibia, left humerus, and/or left elbow disorder that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner should specifically acknowledge and comment on the veteran's report of a continuity of symptoms since service and discuss the diagnosis of osteomyelitis and arthritis of the upper extremity. The rationale for all opinions expressed should be provided. 2. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). This claim 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. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs