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