Citation Nr: 0812917 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 06-25 164A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for left ankle osteoarthritis. ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active duty service from August 1954 until August 1958. He had subsequent service in the Air Force reserve, until discharged in August 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 a new diagnosis for a new claim. As such, the current claim will be considered on the basis of new and material evidence and not as a separate and distinct claim. FINDINGS OF FACT 1. In a February 1998 decision, the Board denied service connection for left ankle fracture residuals, following the appeal of a May 1995 rating decision denying service connection for left ankle osteoarthritis. 2. The evidence associated with the claims file since the February 1998 final denial does not relate to an unestablished fact necessary to substantiate the claim for left ankle osteoarthritis. CONCLUSIONS OF LAW 1. The Board's February 1998 decision is final. 38 U.S.C.A. § 7104(b)(West 2002); 38 C.F.R. § 20.1100 (2007). 2. Evidence received since the February 1998 Board decision is not new and material; the claim of entitlement to service connection for left ankle osteoarthritis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 or her 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. This notice was provided in June 2006 and the claim was subsequently readjudicated. Thus, the veteran has not been prejudiced from the untimely notice. 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). In this case, the notice letter provided to the appellant in September 2004 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in September 2004 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. When, through no fault of the veteran, records under the control of the Government are unavailable, VA's duty then requires that VA advise the veteran of his right to support his claim by submitting alternate sources of evidence, including service medical personnel statements, or lay evidence, such as "buddy" affidavits or statements. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005). VA did advised the veteran of the opportunity to support his claim with alternate forms of evidence, such as a "buddy" statement or a statement from a doctor, in the September 2004 notice letter, and the veteran demonstrated an understanding of his ability to submit alternate forms of evidence by submitting additional statements from friends regarding his claim. VA also 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. 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. The veteran submitted statements from friends and personal statements regarding his claimed disorder. In the absence of new and material evidence submitted by the claimant, the duty to assist and provide a VA examination is not triggered. See 38 U.S.C. § 5103A; Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed.Cir. 2003) (Holding that in the absence of new and material evidence, VA was not required to provide assistance to a claimant, including affording him a VA examination). Significantly, neither the appellant 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. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). New and Material Evidence The veteran seeks to reopen a previously denied claim for service connection for left ankle osteoarthritis. A review of the record indicates that the veteran was previously denied service connection for left ankle osteoarthritis in a May 1995 rating decision. The veteran appealed the May 1995 rating decision to the Board, which denied service connection for left ankle fracture residuals in February 1998. The Board denied the veteran's claim for service connection on February 25, 1998. The Board's decision is final and was based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 U.S.C.A. § 7104. A May 1996 rating decision also denied service connection for a fracture of the left ankle. A claim to reopen was denied in May 2005, based on no new and material evidence adequate to reopen. Currently, the veteran is appealing a February 2005 rating decision that confirmed and continued the denial of left ankle osteoarthritis. The RO appears to have reopened the veteran's claim, in a June 2006 Statement of the Case, and proceeded to deny the claim on its merits. However, the question of whether new and material evidence has been received to reopen a claim must be addressed by the Board regardless any RO action. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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. The evidence of record at the time of the February 1998 Board denial consisted of incomplete service medical records, due to a fire-related loss of records, that did not indicate any complaints of or treatment for a left ankle disorder; a March 1987 medical record by Dr. J.G. reporting treatment of a work-related left ankle injury, after the veteran jumped from a truck at work, and a x-ray of the left ankle showing degenerative changes at the tip of the medial and lateral malleolus, possibly due to old healing fractures; a September 1993 letter from Dr. V.M. reporting that the veteran has osteoarthritis of the left ankle; a November 1994 lay statement from the veteran's aunt indicating her knowledge of an in-service ankle injury, which specifically recounted that the veteran had to wear a cast in service; and the veteran's testimony from a RO hearing, in which he reported injuring his ankle in service. The final, February 1998 Board denial found that there was an absence of any medical evidence attributing the veteran's left ankle problems to an in-service trauma, and that his diagnosed ankle disorder was not attributable to any incident of injury or disease incurred during active duty service. Subsequent to the Board denial, the veteran submitted private medical records, which generally reported complaints of neck pain, headaches, psychological treatment and pain management, and asbestosis. Social Security records have also been associated with the claims file. There were also more recent VA medical records demonstrating that the veteran currently suffers from left ankle degenerative arthritis. However, none of these medical records provided a medical nexus opinion relating the etiology of the veteran's left ankle disorder with service. In his attempt to reopen the claim, the veteran has filed additional lay statements from acquaintances indicating that he currently has an ankle disorder. The Board particularly notes the statement from his friend, Mr. W.G.C., dated in August 2004. Mr. W.G.C. reported that he served with the veteran and that he recalled that he had a cast on his foot and crutches at some point during their service together. Although the evidence submitted since the February 1998 Board decision is new, in that it was not previously of record, the newly submitted evidence is not material. None of the newly associated evidence provided any medical evidence attributing the veteran's left ankle disorder to his active service, which was essentially the basis of his previous Board denial. The newly submitted medical evidence only demonstrates what was previously known, that the veteran had an ankle injury in service, as previously supported by his aunt's lay statement, and that he currently has a left ankle disorder. Additionally, the new lay evidence associated with the claim attesting to the veteran's current left ankle disorder is redundant of earlier evidence indicating that the veteran has a left ankle disorder and that he had an ankle injury in service. Specifically, while the new evidence includes a claimed eyewitness stating he saw the veteran with a cast in service, there was already competent lay evidence relating this information prior to the Board's 1998 denial. Indeed, the Board's 1998 denial did not turn on whether or not the veteran actually incurred a left ankle injury in service. Rather, the Board reasoned that there was insufficient medical evidence linking the veteran's left ankle disability, first diagnosed some 30 years after service, to any disease or injury that might have been incurred during service. The evidence received since the February 1998 Board denial does not contain credible medical evidence indicting that the veteran has a left ankle disorder related to service. Therefore, the additional evidence received is not "material" since it does not relate to an unestablished fact necessary to substantiate the claim, specifically that the veteran's claimed left ankle disorder is related to service, and does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the claim for service connection may not be reopened. ORDER New and material evidence has not been submitted, and the application to reopen the claim for entitlement to service connection for left ankle osteoarthritis is denied. ______________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs