Citation Nr: 0811534	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  05-32 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in No. Little 
Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for peripheral vascular 
disease of the left lower extremity (claimed as a left foot 
disorder).

2.  Whether new and material evidence has been submitted to 
reopen the appellant's claim for entitlement to service 
connection for a right foot and ankle disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel




INTRODUCTION

The veteran served on active duty from October 1950 to May 
1952.

The instant appeal arose from a January 2005 rating decision 
of the Department of Veterans Affairs (VA) Regional Office 
(RO), in North Little Rock, Arkansas, which denied a claim 
for service connection for peripheral vascular disease of the 
left lower extremity and denied a claim to reopen a claim for 
service connection for residuals of a fracture of the right 
foot and ankle.


FINDINGS OF FACT

1.  A chronic left lower extremity disorder, including 
peripheral vascular disease, was not manifested in service or 
for many years following service discharge, and has not been 
related by competent medical evidence to any disease or 
injury sustained during the veteran's period of service.

2.  In May 2002, the RO denied a claim to reopen a claim for 
service connection for residuals of a chip fracture of the 
right foot.

3.  Evidence submitted subsequent to the May 2002 decision, 
although new, is not material because it does not include 
competent evidence that relates to the unestablished fact of 
an injury to the right foot in service or an aggravation of a 
pre-existing injury.


CONCLUSIONS OF LAW

1.  A left lower extremity disorder, including peripheral 
vascular disease, was not incurred in or aggravated by the 
veteran's active military service.  38 U.S.C.A. §§ 1110, 
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 
(2007).

2.  A May 2002 RO rating decision that denied service 
connection for residuals of a chip fracture of the right foot 
is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 
C.F.R. §§ 20.302, 20.1103 (2007).

3.  The evidence received since the RO's May 2002 decision is 
not new and material; the veteran's claim for service 
connection for a right foot and ankle disorder is not 
reopened.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.156 , 3.159 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection for a left lower extremity disorder

The veteran contends that service connection is warranted for 
a left lower extremity disorder.  He is currently diagnosed 
with iliac and popliteal artery disease and mild pedal arch 
disease of the left lower extremity.  See July 21, 2003, VA 
treatment record.  He attributes his current diagnosis to 
treatment and injuries in service.

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110 (West 2002).  Service connection 
for a left lower extremity disorder is not warranted on a 
direct or secondary basis because the preponderance of the 
evidence is against a finding that the veteran's current left 
lower extremity disorder is related to service or a service-
connected disability.  

The service medical records reveal no complaint, treatment, 
or diagnosis referable to the left lower extremity.  The 
first post-service medical record which refers to a left 
lower extremity disorder is a 1995 VA examination report 
which opined that the veteran "probably has some arteriolar 
deficiency to the . . . left lower extremity."  Evidence of 
such a prolonged period without apparent medical complaint 
weighs against the claim.  Maxson v. Gober, 230 F.3d 1330 
(Fed. Cir. 2000).  In addition, while the veteran is 
competent to report what he experiences, like pain in the 
leg, in view of the absence of any evidence of complaints 
referable to the left lower extremity for over 40 years, the 
Board of Veterans' Appeals (Board) accords his current 
assertions little probative weight.  

The claim is denied because the preponderance of the evidence 
shows that there is no nexus between any current left lower 
extremity diagnosis and service or a service-connected 
disability.  While the veteran has stated that his current 
left lower extremity problems are related to service, as a 
lay person, he has no competence to give a medical opinion on 
the etiology of a condition.  Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992).  While the veteran is competent to relate 
his observable symptoms, like left leg pain, his statements 
in support of the claim are outweighed by the medical 
evidence.  

While the Board has sympathetically considered the arguments 
advanced by the veteran, it concludes that the preponderance 
of the evidence is against the claim on appeal.  When the 
preponderance of evidence is against a claim, it must be 
denied.  38 U.S.C.A. § 5107.  

VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative, if any, of any information, 
and any medical or lay evidence, that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  
Proper notice from VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
(3) that the claimant is expected to provide; and (4) must 
ask the claimant to provide any evidence in her or his 
possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
In this case, although the notice provided did not address 
either the rating criteria or effective date provisions that 
are pertinent to the appellant's claim, such error was 
harmless given that service connection is being denied, and 
hence no rating or effective date will be assigned with 
respect to this claimed condition.  

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the veteran in August 2004 that fully 
addressed all four notice elements and was sent prior to the 
initial AOJ decision in this matter.  The letter informed the 
veteran of what evidence was required to substantiate the 
service connection claim and of the veteran's and VA's 
respective duties for obtaining evidence.  The veteran was 
also asked to submit evidence and/or information in her or 
his possession to the AOJ.

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a veteran's claim for benefits, there are 
four factors for consideration.  These four factors are:  
(1) whether there is competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that 
an event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an 
applicable presumption period; (3) whether there is an 
indication that the disability or symptoms may be associated 
with the veteran's service or with another service-connected 
disability; and (4) whether there otherwise is sufficient 
competent medical evidence of record to make a decision on 
the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals 
for Veterans Claims has stated that this element establishes 
a low threshold and requires only that the evidence 
"indicates" that there "may" be a nexus between the 
current disability or symptoms and the veteran's service.  
The types of evidence that "indicate" that a current 
disability "may be associated" with military service 
include, but are not limited to, medical evidence that 
suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

In this case, the duty to assist does not require that a VA 
medical examination be provided because there is no evidence 
establishing that an event, injury, or disease with respect 
to the left lower extremity occurred in service.  As noted 
above, there are no complaints, treatment, or diagnosis with 
respect to the left leg in the service medical records.  
Further, the low threshold with regard to the third element 
has not been met in this case.  There is no medical evidence 
that suggests a nexus between the veteran's current diagnosis 
and service.  In addition, there is no credible evidence of 
continuity of symptomatology.  The veteran has only recently 
reported left leg complaints, and his statements with regard 
to nexus are vague.  He attributes his vascular problems, 
diagnosed many years after service, to nonspecific 
"treatment and injuries" in service.  Accordingly, a VA 
examination is not warranted. 

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA outpatient 
treatment records.  Significantly, neither the veteran nor 
his or her representative has identified, and the record does 
not otherwise indicate, any additional existing evidence that 
is necessary for a fair adjudication of the claim that has 
not been obtained.  The veteran informed VA of several 
medical providers who had treated his foot, although it is 
unclear as to whether any of these medical providers treated 
the left foot.  He was unable to provide complete addresses 
for these providers, and he indicated that several of the 
medical providers could be retired or deceased.  VA searches 
of the American Medical Association listings, the internet, 
and the phone book were unsuccessful.  In addition, one 
medical facility responded to VA's development request by 
stating that they had no record for the veteran.  
Accordingly, the Board finds that further efforts to obtain 
this evidence would be futile.  For that reason, no further 
notice or assistance to the veteran is required to fulfill 
VA's duty to assist the veteran in the development of the 
claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 
F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. 
App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).

Reopening service connection for a right foot and ankle 
disorder

The veteran contends that he has a right foot and ankle 
disorder that began in service.  He reported that these 
problems continued after service and have worsened in recent 
years.

The Board has a legal duty to address the "new and material 
evidence" requirement regardless of the actions of the RO.  
If the Board finds that no new and material evidence has been 
submitted, it is bound by a statutory mandate not to consider 
the merits of the case.  Barnett v. Brown, 8 Vet. App. 1, 4 
(1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also 
McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).

The law provides that a claimant may reopen a previously 
final adjudicated claim by submitting new and material 
evidence.  38 U.S.C.A. § 5108.  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).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the 
United States Court of Appeals for the Federal Circuit noted 
that new evidence could be sufficient to reopen a claim if it 
could contribute to a more complete picture of the 
circumstances surrounding the origin of a veteran's injury or 
disability, even where it would not be enough to convince the 
Board to grant the claim.  In determining whether evidence is 
new and material, the "credibility of the evidence is to be 
presumed."  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  
If new and material evidence is presented or secured with 
respect to a claim that has been disallowed, the VA Secretary 
shall reopen the claim and review the former disposition of 
the claim.  See 38 U.S.C.A. § 5108.

In this case, a May 2002 RO rating decision declined to 
reopen the claim for service connection for residuals of a 
chip fracture of the right foot.  That rating decision noted 
that the claim was originally denied in 1953 because there 
was no injury to the right foot or ankle in service or an 
aggravation of a pre-existing injury.  Claims to reopen were 
denied in 1962, 1979, and 1992.  In 1996, the Board granted a 
claim to reopen based on a 1992 private treating physician's 
statement which indicated that the veteran's current right 
foot complaints might be due to an inservice injury to the 
right foot.  However, the claim for service connection for a 
right foot disorder was denied, based on the fact that the 
veteran sustained a chip fracture of the foot prior to 
service and there was no increase in severity of the pre-
service foot disorder during service.  Another claim to 
reopen was denied in 2000.

The evidence of record at the time of the January 2002 rating 
decision included service medical records; private medical 
records; private medical opinions, lay statements from the 
veteran, his friends, and his family; VA treatment records; 
and VA examination reports.  The service medical records 
included an induction examination that noted a history of a 
fractured metatarsal of the right foot in 1947.  The 
remainder of the service medical records were negative for 
persistent foot or ankle problems, although a 1951 X-ray 
report revealed an old chip fracture of the right foot.  
Medical records after service, in 1952 and 1953, did not 
reveal complaints or treatment with respect to a right foot 
or ankle disorder.  The next medical treatment records for 
the right foot were dated in 1962.  The veteran complained of 
pain and swelling.  These complaints remained fairly 
consistent for the next 40 years.  Minimal degenerative 
changes in the right foot were noted in 1986.  A 1995 VA 
examiner opined that the veteran's arthritis of the right 
foot was consistent with his age.  VA treatment records dated 
from 2000 to 2002 did not show treatment for fracture of the 
right foot.

Notice of the May 2002 rating decision was issued on May 7, 
2002.  The veteran did not appeal the decision, so the May 
2002 rating decision became final.  38 U.S.C.A. § 7105(c); 38 
C.F.R. §§ 20.302, 20.1103. 

In July 2004, the veteran filed a claim to reopen.  The 
additional evidence received since the May 2002 final rating 
decision includes VA treatment records dated in 2003 and 2004 
that show that the veteran reported calf pain and was 
assessed with femoral artery disease and that the veteran 
underwent diabetic foot care assessment.  Complaints, 
treatment, or diagnosis with regard to the right foot or 
ankle were not otherwise noted.

After a review of all the evidence of record, lay and 
medical, whether or not specifically mentioned in this 
decision, the Board finds that the evidence associated with 
the claims file subsequent to the May 2002 decision that was 
not previously submitted to agency decisionmakers, when 
considered with previous evidence of record, does not relate 
to the unestablished facts of in-service injury or disease of 
the right foot and ankle or relationship of current findings 
to service, including aggravation of a pre-existing right 
foot disorder, that is necessary to substantiate the claim.  

Because this new evidence does not raise a reasonable 
possibility of substantiating the claim, the evidence 
associated with the claims file subsequent to the May 2002 
rating decision is not new and material, and a previously 
denied claim for service connection for a right foot and 
ankle disorder is not reopened.  38 U.S.C.A. § 5108; 
38 C.F.R. § 3.156(a).

VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

The duty to notify provisions of the statute and implementing 
regulations apply to claims to reopen based on new and 
material evidence.  See Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Specific to requests to reopen, the claimant 
must be notified of both the reopening criteria and the 
criteria for establishing the underlying claim for service 
connection.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  
To satisfy this requirement, the Secretary is required to 
look at the bases for the denial in the prior decision and to 
provide the claimant with a notice letter that describes what 
evidence would be necessary to substantiate those elements 
required to establish service connection that were found 
insufficient in the previous denial.

In this case, the notice letter provided to the veteran in 
August 2004 included the criteria for reopening a previously 
denied claim and the criteria for establishing service 
connection.  That letter also informed the veteran that his 
claim had previously been denied because there was no 
evidence showing that a right foot disorder was incurred in 
or caused by military service.  Consequently, the Board finds 
that adequate notice has been provided.

In the present appeal, because the claim to reopen service 
connection is being denied, and no effective date or rating 
percentage will be assigned regarding that issue, the Board 
finds that there can be no possibility of any prejudice to 
the veteran under the holding in Dingess, supra.  The veteran 
and his representative have not alleged any prejudice with 
respect to the timing of the notification, nor has any been 
shown.

The veteran has been afforded a meaningful opportunity to 
participate effectively in the processing of the claim, 
including by submission of statements and evidence.  For 
these reasons, it is not prejudicial to the veteran for the 
Board to proceed to finally decide the appeal.  See Conway v. 
Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. 
Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 
Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 
(1993).

+
ORDER

Service connection for a left lower leg disorder is denied.

New and material evidence has not been received, and the 
claim for service connection for a right foot and ankle 
disorder is not reopened.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs