Citation Nr: 0813038 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 03-25 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for degenerative changes of the lumbar spine with spondylolysis and spondylolisthesis of L5-S1 (hereinafter, "low back disorder"). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of multiple joints. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for umbilical hernia. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of heat exhaustion. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a right shoulder injury/strain. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a foot disorder other than cold injury residuals/frostbite. 7. Entitlement to an increased rating for cold injury residuals of the right foot, currently evaluated as 10 percent disabling. 8. Entitlement to an increased rating for cold injury residuals of the left foot, currently evaluated as 10 percent disabling. 9. Entitlement to an effective date earlier than June 2, 2005, for assignment of a 10 percent rating for service- connected residuals of dislocated left middle finger. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL AA (The veteran's fiancée) ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from September 1985 to October 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in October 2002, May 2003, February 2006, and March 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. By the October 2002 rating decision, the RO denied service connection for arthritis of the lumbar spine. Thereafter, by the May 2003 rating decision the RO continued the 10 percent evaluations for cold injury residuals of each foot. By the February 2006 rating decision, the RO found that new and material evidence had not been received to reopen the veteran's claims of service connection for arthritis of multiple joints, umbilical hernia, heat exhaustion, and right shoulder disorder. The RO also assigned a 10 percent rating for the veteran's service- connected left middle finger, effective June 2, 2005. Finally, by the March 2007 rating decision, the RO found that new and material evidence had not been received to reopen the veteran's claim of service connection for a foot disorder other than cold injury residuals. The Board observes that a claim of service connection was previously denied for a low back disorder by a February 1995 rating decision. However, an April 2001 Board decision concluded that this was a separate and distinct claim from the one currently on appeal as the prior denial was for lumbar strain, while the current claim is for degenerative changes of the spine. Further, correspondence sent to the veteran by the RO in August 2001 indicated that the claim was being adjudicated on the merits due to a change in law. The veteran's fiancée provided testimony at a hearing conducted before the undersigned Veterans Law Judge in November 2007. A transcript of this hearing has been associated with the VA claims folder. Unfortunately, the veteran was unable to attend the hearing because he was incarcerated. For the reasons stated below, the Board finds that new and material evidence has been received to reopen the right shoulder claim, but that additional development is required to address the merits of the underlying service connection claim. Similarly, for the reasons addressed in the REMAND portion of the decision below, the Board finds that additional development is required with respect to the low back claim. Accordingly, these claims will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if additional action is required on his part. FINDINGS OF FACT 1. All reasonable development and notification necessary for the equitable disposition of the instant case has been completed. 2. Service connection was originally denied for residuals of a right shoulder injury, heat exhaustion, umbilical hernia, and a foot disorder other than cold injury residuals by a February 1995 rating decision. Except for the foot disorder claim, a subsequent October 1999 rating decision found that new and material evidence had not been received to reopen these claims. The veteran was informed of both decisions, including his right to appeal, and he did not appeal. 3. Service connection was originally denied for arthritis of multiple joints by an April 1999 rating decision, and was subsequently upheld by an April 2001 Board decision. The veteran did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (Court). 4. The evidence received since the last prior denial of service connection for a right shoulder disorder was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 5. Although the evidence received since the prior denials of service connection for arthritis, umbilical hernia, heat exhaustion, and a foot disorder other than the already service-connected cold injury residuals was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claims, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claims. 6. Although the cold injury residuals of both feet are manifested by cold sensitivity, the competent medical evidence does not reflect that either foot is also manifested by tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 7. No increased rating claim was filed for the service- connected left middle finger disorder prior to June 2, 2005, nor is it factually ascertainable from the competent medical evidence that a compensable rating was warranted prior to that date. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claim of entitlement to service connection for a right shoulder disorder, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. New and material evidence not having been received to reopen the claims of entitlement to service connection for arthritis of multiple joints, umbilical hernia, heat exhaustion residuals, and/or foot disorder other than cold injury residuals, these benefits sought on appeal are denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156(a), 3.159 (2007). 3. The criteria for a rating in excess of 10 percent for cold injury residuals of the right foot are not met. 38 U.S.C.A. §§ 1155, 5103, 513A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7122 (2007). 4. The criteria for a rating in excess of 10 percent for cold injury residuals of the left foot are not met. 38 U.S.C.A. §§ 1155, 5103, 513A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7122 (2007). 5. The criteria for an effective date earlier than June 2, 2005, for the assignment of a 10 percent rating for service- connected residuals of dislocated left middle finger are not met. 38 U.S.C.A. §§ 5103, 513A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the record reflects the veteran was sent pre-adjudication notice regarding the low back claim by a letter dated in August 2001; for the cold injury residuals of the feet by a letter dated in March 2003; and for the new and material evidence claims by letters dated in May 2005, July 2005, and September 2005. As for the earlier effective date claim, this appeal is from the effective date assigned following the initial grant of a 10 percent rating. Thus, it does not appear that pre-adjudication notice was possible as to that claim. In any event, he was sent additional notification by a letter dated in March 2006 which, in pertinent part, provided adequate notification as to the evidence necessary to determine the proper effective date. Taken together, the aforementioned notification letters informed the veteran of the evidence necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and indicated the need for the veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the holding in Quartuccio, supra. Moreover, the March 2006 letter contained the specific information regarding disability rating(s) and effective date(s) mandated by the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that, during the pendency of this appeal, the Court issued a decision in the appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006), which established significant new requirements with respect to the content of the notice necessary for those cases involving the reopening of previously denied claims. Specifically, the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought by the claimant. Here, the September 2005 letter noted the prior denials, explained the bases for the denials, and explained the standard for new and material evidence by language which tracks that of the relevant regulatory provision. As such, the Board finds that the veteran has received adequate notification pursuant to Kent, supra. The Board also notes that the veteran has actively participated in the processing of his case, and the statements submitted in support of his claims have indicated familiarity with the requirements for the benefits sought on appeal. For example, his statements have cited to relevant VA regulatory provisions regarding his claims. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board further notes that the Court recently issued a decision in the case of Vazquez-Flores v. Peake, 22. Vet. App. 37 (2008), regarding the information that must be provided to a claimant in the context of an increased rating claim. Specifically, the Court held that section § 5103(a) requires: (1) at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; and (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In regard to the aforementioned criteria, the Board notes that the notification letters sent to the veteran regarding this case satisfy elements (1) and (3). Although none of the aforementioned notification letters contained the specific criteria of the relevant Diagnostic Code (i.e., element (2)), this information was included in the October 2004 Statement of the Case. The Board also notes that the veteran has actively participated in the processing of his case, and the statements submitted in support of his claim have indicated familiarity with the requirements for the benefits sought on appeal. Further, this finding is supported by the fact that he has had increased rating claims in the past, to include one which was denied by the April 2001 Board decision. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the veteran was notified and aware of the evidence needed to substantiate the claims decided herein and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the duty to assist the veteran has been satisfied in this case. All available medical records are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claims. Nothing in the record indicates the veteran has identified the existence of any relevant evidence that is not of record. As noted in the Introduction, the veteran was unable to attend the November 2007 Board hearing. Moreover, he was accorded VA medical examinations in September 2002, February 2005, January 2006 and March 2007. Although none of these examinations were in regard to the new and material evidence claims, under the law, an examination is not required in the context of new and material evidence claims. 38 C.F.R. § 3.159(4)(iii); see also 66 Fed. Reg. 45,620, 45,628 (August 29, 2001). As for the earlier effective date claim, the Board observes that adjudication of this case is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the veteran, as well as what they showed regarding the severity of the service- connected disability prior to the current effective date. Consequently, the Board finds that the duty to assist has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows that the veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). I. New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Historically, service connection was originally denied for residuals of a right shoulder injury, heat exhaustion, umbilical hernia, and a foot disorder other than cold injury residuals by a February 1995 rating decision. Except for the foot disorder claim, a subsequent October 1999 rating decision found that new and material evidence had not been received to reopen these claims. The veteran was informed of both decisions, including his right to appeal, and he did not appeal. The Board notes that the veteran has contended that he never received notification of the February 1995 rating decision. However, the record from that period reflects that the notification was sent to his address of record, it was not returned as undeliverable, and no alternative address appears to have been of record. It is well established that it is his responsibility to keep VA advised of his whereabouts in order to facilitate the conducting of medical inquiry. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The Court also has ruled that there is a "presumption of administrative regularity" under which it is presumed that Government officials have properly discharged their official duties - including insofar as mailing notices, etc. And to rebut this presumption, there must be "clear evidence" to the contrary that either VA's regular mailing practices were not regular or they were not followed. More precisely, in order to rebut this presumption the veteran must establish both that the mailing was returned as undeliverable and that there were other possible and plausible addresses to contact him. See, e.g., Davis v. Principi, 17 Vet. App. 29 (2003); Woods v. Gober, 14 214 (2000); Mindenhall v. Brown, 7 Vet. App. 271 (1994). In this case, though, no clear evidence to the contrary has been presented with which to rebut the presumption of administrative regularity. It is therefore presumed that timely notice of the prior denial was sent to the veteran at his most recent address of record. In addition to the foregoing issues, service connection was originally denied for arthritis of multiple joints by an April 1999 rating decision, and was subsequently upheld by an April 2001 Board decision. The veteran did not appeal the Board's decision to the Court. The veteran has also contended his prior denials were in error, that his disabilities have not been properly evaluated by VA, and cited to 38 C.F.R. § 3.105. In pertinent part, 38 C.F.R. § 3.105(a) states "[p]revious determinations which are final and binding ... will be accepted as correct in the absence of clear and unmistakable error [CUE]." A decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). However, the Court has held that a claimant must assert more than a disagreement as to how the facts were weighed or evaluated; he must, with some degree of specificity, identify the alleged error and provide persuasive reasons why the result would have been different but for the alleged error. Simply to claim CUE on the basis that previous adjudications had improperly weighed the evidence can never rise to the stringent definition of CUE. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40 (1993), en banc review denied, Fugo v. Brown, 6 Vet. App. 162 (1994). Moreover, the Court has indicated that an inadequate examination does not constitute CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992) (An error made by a VA doctor who examines a veteran is "not administrative error during the adjudication process which would require the prior decision to be reversed or amended..."). Thus, the Board is of the opinion that the veteran has not raised a valid claim of CUE with respect to the prior denials, and it will not adjudicated at this time. For these reasons, the Board finds that the prior denials of service connection for right shoulder injury, heat exhaustion, umbilical hernia, foot disorder other than cold injury residuals, and arthritis of multiple joints are final. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). For claims filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. See 66 Fed. Reg. 45,628, 45,630 (August 29, 2001). Here, the evidence on file at the time of the last prior denial of service connection for right shoulder injury, heat exhaustion, umbilical hernia in October 1999 included statements from the veteran, his service medical records, and post-service medical records which covered a period through 1999. Similar evidence was on file at the time of the Board's April 2001 denial of service connection for arthritis of multiple joints. The Board acknowledges that the veteran's service medical records reflect, in part, that he was treated for a right shoulder injury in November 1990; that an umbilical hernia was noted on an August 1989 re-enlistment examination and his 1993 release from active duty examination (where it was described as asymptomatic); and for cold painful feet in February 1993. However, there were no findings of a disability resulting from heat exhaustion, arthritis, or foot problems other than the already service-connected cold injury residuals. Further, his feet and upper extremities were evaluated as normal on his release from active duty examination. The record reflects that an October 1994 VA medical examination found no objective findings indicating impairment of the right shoulder or feet. Although the veteran was found to have a small umbilical area defect not admitting hernia sac, but there were no inguinal hernias, bowel sounds were normal, and external genitalia and prostate were totally normal. There were also no findings of either heat exhaustion residuals or arthritis of multiple joints at that time. The February 1995 rating decision denied service connection for residuals of a right shoulder injury, heat exhaustion, and a foot condition other than cold injury residuals, in essence, because the evidence indicated that the in-service findings were acute conditions that had resolved with no current impairment. As for the umbilical hernia, it was found that the evidence showed the condition had been present since birth and that there was no permanent aggravation of the pre-existing condition during service. At the time of the October 1999 rating decision, medical records dated in April 1999 did show treatment for complaints of intermittent right shoulder pain. However, there were no findings regarding residuals of heat exhaustion or umbilical hernia. There were also no findings indicative of arthritis of multiple joints. The October 1999 rating decision found that no new and material evidence had been received to reopen the right shoulder, umbilical hernia, and heat exhaustion claims. Although it was acknowledged the additional evidence showed treatment for right shoulder pain, it was held that it did not show the veteran had a chronic condition of that joint which was related to his period of active duty. In regard to the arthritis claim, the April 2001 Board decision found, in pertinent part, that the evidence of record did not show the veteran had generalized osteoarthritis of multiple joints. Simply put, it is clear from the foregoing that service connection was denied in the past because the competent medical evidence did not reflect the veteran currently has chronic disabilities of the right shoulder, umbilical hernia, feet (other than the already service-connected cold injury residuals), nor did he have arthritis of multiple joints. The evidence added to the record since the last prior denials of the veteran's claims include additional statements from the veteran, AA's testimony on his behalf at the November 2007 Board hearing, as well as additional post-service medical records which cover a period through 2007. Initially, the Board observes that the additional post- service medical records indicate that the veteran does currently have a chronic right shoulder disability. For example, medical records dated in May 2003 include findings of chronic right shoulder pain. In short, evidence has been received which goes to the basis for the original denial. Moreover, evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for a right shoulder disorder was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. Thus, new and material evidence has been received in accord with 38 C.F.R. § 3.156(a). Adjudication does not end with the finding that new and material evidence has been received. The Board must now address the merits of the underlying service connection claim. For the reasons addressed in the REMAND portion of the decision below, the Board concludes that additional development is required with respect to the right shoulder claim. Regarding the arthritis, umbilical hernia, heat exhaustion, and foot disorder claims, the veteran has contended that these conditions were noted during service, and that service connection is warranted as a result thereof. However, he advanced similar contentions at the time of the prior denials. As such, the Board finds that this evidence is cumulative and redundant of the evidence previously of record. The Board also observes that the additional post-service medical records do not reflect that the veteran currently has a chronic disability due to heat exhaustion or of the feet besides the already service-connected cold injury residuals. In addition, these records do not show generalized osteoarthritis of the joints; nor that his umbilical hernia was aggravated during active service. Further, a March 2007 VA medical examination noted that, in addition to the symptomatology of the service-connected cold injury residuals of the feet, the veteran had onychomycosis of the right foot and tinea pedis of both feet. However, the examiner opined that these conditions were not related to active service. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (unfavorable evidence does not "trigger a reopening"). Accordingly, the Board finds that this evidence is cumulative and redundant of that previously of record. There being no other evidence received in conjunction with the veteran's applications to reopen, the Board finds that while the evidence received since the prior denials of service connection for arthritis, umbilical hernia, heat exhaustion, and a foot condition other than the already service-connected cold injury residuals, was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate these claims, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating these claims. As such, new and material evidence has not been received to reopen these claims pursuant to 38 C.F.R. § 3.156(a). Inasmuch as new and material evidence adequate to reopen the previously denied claims has not been received, the Board does not have jurisdiction to consider the claims or to order additional development. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). II. Increased Rating Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, the Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Under Diagnostic Code 7122, cold injury residuals are assigned a 10 percent rating for arthralgia or other pain, numbness, or cold sensitivity. A 20 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A maximum rating of 30 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104. In the instant case, the Board finds that neither the right nor the left foot cold injury residuals meets or nearly approximates the criteria for a rating in excess of 10 percent. Here, the competent medical evidence, to include the VA medical examinations, reflects that the veteran's service- connected cold injury residuals of both feet are manifested by cold sensitivity. This corresponds to the criteria for the current 10 percent rating under Diagnostic Code 7122. However, there is no indication of tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis or X-ray abnormalities. For example, the February 2005 VA medical examination noted that he walked with no difficulty; his skin was grossly normal, there was no edema; no atrophy; no overt ulcerations, cracks, or non- healing wounds. He also had good peripheral pulses, normal capillary refill and sensation. Although he did have fungal infection of the toes, the examiner opined that it was not a result of the cold injury. Further, the examiner stated that there was no loss of function or activity secondary to the cold injury. On the more recent March 2007 VA medical examination his feet had normal skin color, with no edema or atrophy. Moreover, there was no ulceration of the skin and hair growth was normal. Sensory testing was also normal, as were peripheral pulses and capillary refill. There was no pain or stiffness of any of the joints of the toes or ankles. In view of the foregoing, the Board finds that the service- connected cold injury residuals of both the right and left foot are adequately compensated by the current 10 percent evaluations, and he does not meet or nearly approximate the criteria for a higher rating for either foot under Diagnostic Code 7122 during any portion of the appeal period. III. Earlier Effective Date In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. 3.155. The provisions of 38 C.F.R. § 3.157 commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims "for increase or to reopen" where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The Federal Circuit, in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defines "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." Historically, the Board notes that service connection was established for the veteran's left middle finger disorder by the February 1995 rating decision, evaluated as noncompensable (zero percent disabling). This noncompensable rating was subsequently continued by an April 1999 rating decision, which was upheld by the April 2001 Board decision. Thereafter, the next adjudication of this service-connected disability was the February 2006 rating decision which assigned the 10 percent evaluation, effective June 2, 2005. In view of the foregoing, the Board must first determine whether the veteran filed an increased rating claim for the left middle finger after the April 2001 rating decision, but before the current June 2, 2005, effective date. Here, a thorough review of the record does not reflect any written communication was received by VA during this period in which the veteran indicated that he was entitled to a compensable rating for his service-connected left middle finger, and/or he intended to apply for such benefits. Thus, the Board must find that the veteran did not file a claim earlier than the current effective date. See Rodriguez, supra. As such, he is not entitled to an earlier effective date on that basis. As no claim was filed earlier than June 2, 2005, the veteran is only entitled to an earlier effective date if the evidence reflects it was factually ascertainable prior to that date that a 10 percent evaluation was warranted. In this case, the veteran's left middle finger is evaluated pursuant to the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5226. Under this Code, a 10 percent rating is assigned for unfavorable or favorable ankylosis of the long finger. The Note provides that it also should be considered whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Shipwash v. Brown, 8 Vet. App. 218, 221 (1995), citing Dorland's Illustrated Medical Dictionary, 91 (27th ed. 1988). Here, a review of the competent medical evidence does not reflect that it was factually ascertainable prior to June 2, 2005, that the veteran's service-connected left middle finger was manifested by ankylosis or impairment analogous thereto. In fact, there do not appear to be any relevant findings regarding this joint during the pertinent period upon which the Board could find that such impairment was present. For these reasons, the Board concludes that there is no legal basis to assign an effective date earlier than June 2, 2005, for the 10 percent evaluation for the veteran's service- connected left middle finger. Thus, this claim must be denied. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for a right shoulder disorder, the claim is reopened. To this extent only, the benefit sought on appeal is allowed. New and material evidence not having been received to reopen the claims of entitlement to service connection for arthritis of multiple joints, umbilical hernia, heat exhaustion residuals, and/or foot disorder other than cold injury residuals, the benefits sought on appeal are denied. Entitlement to an increased rating for cold injury residuals of the right foot, currently evaluated as 10 percent disabling, is denied. Entitlement to an increased rating for cold injury residuals of the left foot, currently evaluated as 10 percent disabling, is denied. Entitlement to an effective date earlier than June 2, 2005, for assignment of a 10 percent rating for service-connected residuals of dislocated left middle finger, is denied. REMAND The Board acknowledges that the veteran's service medical records confirm he was treated for back problems while on active duty. For example, records dated in May 1987 note complaints of right lumbosacral back pain after falling in the shower. He was assessed with acute back strain. Further, his August 1993 release from active duty examination noted that he complained of mechanical back pain. Nevertheless, his spine was clinically evaluated as normal on physical examination. The Board also notes that an October 1994 VA medical examination found no objective findings of lumbar myalgia, although there was grade I L5-S1 spondylolisthesis with spina bifida occulta (developmental). Despite the foregoing, there is no competent medical evidence which relates the current low back disorder to active service, to include the in-service treatment for back pain in May 1987. Although the RO stated that a September 2002 VA medical examination indicated that the current disability was not related to the in-service injury, a close reading of the examination report reflects that no such opinion is contained therein. Rather, the opinion was that the findings, to include X-ray reports, did not indicate any pathology which the examiner believed could cause the veteran's back pain. Nevertheless, the record continues to show treatment for back problems. In view of the foregoing, the Board finds that it is not clear from the competent medical evidence whether the veteran's current low back disorder is causally related to his active service, to include the treatment for back pain in May 1987. Similarly, it is not clear from the record whether the current right shoulder disorder is causally related to the in-service injury of that joint. When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Board finds that examination is necessary to determine the current nature and etiology of the veteran's current disabilities of the back and right shoulder. See also 38 C.F.R. § 3.159(c)(4) (An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant), contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim.). Although the Board does not dispute the veteran is currently incarcerated, the record reflects that arrangements have been made for him to undergo other VA medical examinations during this period. Since the Board has determined that a new examination is necessary in the instant case, the veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. For the reasons stated above, this case is REMANDED for the following: 1. Please obtain the names and addresses of all medical care providers who have treated the veteran for his low back and right shoulder since October 14, 2004. After securing any necessary release, obtain those records not on file. 2. After obtaining any additional records to the extent possible, the veteran should be afforded examination to determine the current nature and etiology of his low back and right shoulder disorders. The claims folder should be made available to the examiner for review of pertinent documents therein in connection with the examination; the examiner must indicate the claims folder was reviewed. Following evaluation of the veteran, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that either the current low back and/or right shoulder disorder is of service onset or otherwise related thereto. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated. 3. Thereafter, please review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in March 2007, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs