Citation Nr: 0813667 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-16 487A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for pes planus. 2. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for a throat disability. 3. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for a right shoulder disability. 4. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for residuals of a nose bleed. 5. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for Graves' disease. 6. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for residuals of a knife wound to the left knee. 7. Entitlement to an increased (compensable) disability rating for service-connected foot fungus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from April 1945 to November 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal of an October 2002 rating decision of the "Tiger Team" located at the Department of Veterans Affairs Regional Office (RO) in Cleveland, Ohio. The Louisville RO has original jurisdiction over the case. Procedural history The claims to reopen Service connection for pes planus, a right shoulder disability and residuals of a nose bleed was initially denied in a May 1947 rating decision, which the veteran did not appeal. The veteran subsequently submitted additional evidence, and the RO again denied the claim on the merits in a January 1949 rating action. The veteran did not perfect an appeal that decision. Service connection for a throat condition was initially denied in an October 1985 rating decision and in a September 1986 rating decision. In September 1986, the RO also denied the veteran's claims of entitlement service connection for a knife wound to the left knee and Graves' disease. He did not perfect an appeal of either decision. The veteran filed to reopen the previously-denied claims in July 2001. In the October 2002 rating decision, the RO determined that new and material evidence had not been submitted. The veteran filed a notice of disagreement in regards to the October 2002 rating decision. He requested review by a decision review officer (DRO). The DRO conducted a de novo review of the claims and confirmed the RO's findings in an April 2004 statement of the case (SOC). The appeal was perfected with the submission of the veteran's substantive appeal in May 2004. In April 2008, a motion to advance this case on the Board's docket was granted. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900 (2007). The increased rating claim One issue previously on appeal, entitlement to service connection for foot fungus, was granted by the RO in a March 2007 decision. As will be detailed further in the REMAND portion below, in January 2008 the veteran filed a notice of disagreement (NOD) as to disability rating assigned in the March 2007 decision. A statement of the case (SOC) has not been issued as to that claim. Accordingly, that issue is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. Representation The veteran was previously represented by a private attorney. The veteran revoked this power of attorney and appointed Disabled American Veterans (DAV) as his representative in December 2004. DAV subsequently submitted argument to the Board on the veteran's behalf. Issues not on appeal In May 2007, the veteran's former attorney filed with the RO what purported to be a NOD as to the assigned rating and effective date assigned for foot fungus in the March 2007 decision.. However, as was noted by the RO, because the power of attorney had been previously revoked, the May 2007 correspondence cannot constitute a valid NOD. As was discussed above, the veteran through his representative filed a NOD as to the assigned rating. The veteran and his current representative have not, however, indicated disagreement with the effective date assigned for service connection for foot fungus. Accordingly, that matter is not in appellate status and will be discussed no further herein. In an October 2007 rating decision, the RO denied service connection for residuals of dengue fever. To the Board's knowledge, the veteran has not expressed disagreement as to that decision. That issue is therefore not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. In an unappealed January 1949 decision, the RO denied the veteran's claims of entitlement to service connection for pes planus, a right shoulder disability and residuals of a nose bleed. 2. The evidence associated with the claims folder subsequent to the RO's January 1949 decision is not new and not so significant that it must be considered in order to fairly decide the merits of the veteran's claims of entitlement to service connection for pes planus, a right shoulder disability and residuals of a nose bleed. 3. In an unappealed September 1986 decision, the RO denied the veteran's claims of entitlement to service connection for a throat disability, Graves' disease, and a knife wound to the left knee. 4. The evidence associated with the claims folder subsequent to the RO's September 1986 decision is not new and not so significant that it must be considered in order to fairly decide the merits of the veteran's claims of entitlement to service connection for a throat disability, Graves' disease, and a knife wound to the left knee. CONCLUSIONS OF LAW 1. The January 1949 and September 1986 RO decisions which denied the veteran's claim of entitlement to service connection for pes planus, a throat disability, a right shoulder disability, residuals of a nose bleed, Graves' disease and a knife wound to the left knee are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. Since the January 1949 RO decision, new and material evidence has not been received which is sufficient to reopen the claims of entitlement to service connection for pes planus, a right shoulder disability and residuals of a nose bleed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001). 3. Since the September 1986 RO decision, new and material evidence has not been received which is sufficient to reopen the claims of entitlement to service connection for a throat disability, Graves' disease, and a knife wound to the left knee. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for pes planus. 2. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for a throat disability. 3. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for a right shoulder disability. 4. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for residuals of a nose bleed. 5. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for Graves' disease. 6. Whether new and material evidence has been submitted which is sufficient to reopen a previously-denied claim of entitlement to service connection for residuals of a knife wound to the left knee. The veteran seeks service connection for pes planus, a throat disability, a right shoulder disability, residuals of a nose bleed, Graves' disease and a knife wound to the left knee. Implicit in his claims is the contention that new and material evidence which is sufficient to reopen the previously-denied claims has been received. In the interest of economy, and because these six issues involve the application of identical law to similar facts, the Board will to the extent possible address them together. In the interest of clarity, the Board will first discuss certain preliminary matters. The Veterans Claims Assistance Act of 2000 (the VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). For claims to reopen, such as the instant case, the VCAA appears to have left intact the requirement that a veteran must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f) (West 2002). Once the claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002). Therefore, the VCAA duty to notify currently applies to the issues on appeal; the standard of review and duty to assist do not apply to the claims unless they are reopened. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the relevant law and regulations pertaining to his claims in a letter from the RO dated September 4, 2002 which specifically detailed the evidentiary requirements for service connection, including evidence of "a relationship between your current disability and an injury, disease, or event in service." With respect to notice to the veteran regarding new and material evidence, an additional VCAA letter dated December 9, 2005 stated that "you were previously denied service- connected for pes planus, [a] throat condition . . . [a ]right shoulder condition, residuals of a nose bleed, and Graves['] disease, [and a] knife wound to the left knee . . . The appeal period for th[ose] decision[s] has expired and the decision[s are] now final." The December 2005 letter notified the veteran that evidence sufficient to reopen the veteran's previously denied claims must be "new and material," closely mirroring the regulatory language of 38 C.F.R. § 3.156(a). Moreover, the December 2005 letter informed the veteran as to the reason his claims were previously denied: the pes planus and throat claims for lack of in-service disease or injury; and the right shoulder, residuals of a nose bleed, Graves' disease and knife wound to the left knee claims for lack of in-service disease or injury and no current disability. As such, the veteran was adequately advised of the bases for the previous denials to determine what evidence would be new and material to reopen the claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced September 2002 and December 2005 VCAA letters. Specifically, the veteran was advised in the December 2005 letter that VA would assist him with obtaining relevant records from any Federal agency, including records from the military, VA Medical Centers and the Social Security Administration. With respect to private treatment records, the December 2005 letter informed the veteran that VA would make reasonable efforts to obtain relevant records not held by any Federal agency. Included with both the September 2002 and December 2005 letters were copies of VA Form 21-4142, Authorization and Consent to Release Information, a release for the veteran to sign and return so that VA could obtain private records on his behalf. The December 2005 letter further emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide or, or VA cannot otherwise get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency" [Emphasis as in original]. The Board notes that the December 2005 VCAA letter specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim[s], please let us know. If you have any evidence in your possession that pertains to your claim[s], please send it to us." This request complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. The veteran was not provided complete notice of the VCAA prior to the initial adjudication of his claims, which was by rating decision in October 2002. The Board is of course aware of the decision of the United States Court of Appeals for Veterans Claims (the Court) in Pelegrini v. Principi, 17 Vet. App. 412 (2004), which appears to stand for the proposition that VCAA notice must be sent prior to adjudication of an issue by the RO. Crucially, the veteran was provided with additional VCAA notice through the December 2005 VCAA letter and his claims were readjudicated in the March 2007 SSOC, after he was provided with the opportunity to submit evidence and argument in support of his claims and to respond to the VA notice. Thus, any VCAA notice deficiency has been rectified, and there is no prejudice to the veteran in proceeding to consider his claims. Indeed, the veteran has pointed to no prejudice resulting from the timing of the VCAA notice. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. The veteran in this case seeks to reopen a previously denied claim of entitlement to service connection. Because service connection claims are comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of those claims. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claims 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 the elements of the claims as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, element (1), veteran status, is not at issue. The veteran's claim of entitlement to service connection was initially denied based on elements (2), existence of a disability, and (3), connection between the veteran's service and the claimed disability. As explained above, he has received proper VCAA notice as to his obligations, and those of VA, with respect to those crucial elements. With respect to elements (4) and (5), the veteran was provided notice as to degree of disability and effective date in a letter from the RO dated March 20, 2007. The letter detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the letter instructed the veteran that two factors were relevant in determining effective dates: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In any event, elements (4) and (5) are rendered moot via the RO's denial of the reopening of the veteran's claims. In other words, any lack advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned for the claims. Accordingly, the veteran has received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist As alluded to above, under the VCAA, VA's statutory duty to assist a claimant in the development of a previously finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. Once a claim is reopened, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits under a law administered by VA, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002). In short, the Board concludes that the provisions of the VCAA have been complied with to the extent required under the circumstances presented in this case. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has declined the option of a personal hearing. Accordingly, the Board will proceed to a decision as to the claims to reopen. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). Finality/new and material evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2007). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that the definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claims and present the reasonable possibility of substantiating the claims. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2005)]. This change in the law pertains only to claims filed on or after August 29, 2001. Because the veteran's claim to reopen was initiated in July 2001, the revised regulations are inapplicable to the present appeal. The regulation applicable to this case is set forth in the paragraph immediately following. For the purpose of this case, new and material evidence is defined as evidence not previously submitted to agency decision-makers that bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). There must be new and material evidence as to each and every aspect of the claim that was lacking at the time of the last final denial in order for there to be new and material evidence to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis When the veteran's claims for pes planus, a throat disability, a right shoulder disability, residuals of a nose bleed, Graves' disease and a knife wound to the knee were initially denied, the following evidence was of record. Service medical records show that the veteran reported a sore throat once in April 1945. No diagnosis was made at that time. In August 1946, the veteran presented with a nose bleed out of the left nostril. X-rays of the sinuses were normal. The examiner's initial impressions were of sinusitis, "possible tuberculosis," and "early Graves' disease without goiter suggested by nervousness, sweats, weight loss and fever." The final diagnosis was "undiagnosed condition manifested by nose bleed." The veteran was hospitalized for a few days, with the examiner noting in progress notes that the veteran was "asymptomatic since he has been on the ward." The veteran's blood cholesterol was low, and the examiner noted such was "a little suggestive of Graves' disease." However, upon his discharge it was noted that "all studies negative. Feels well." In a report of medical history in connection with his service discharge examination in October 1946, the veteran reported that he ruptured a vein in his nose a few months prior. Residuals of a nose bleed or Graves' disease were not identified upon examination. The veteran reported no throat symptoms, and no throat disability was identified during the October 1946 examination. The veteran made no complaints as to pes planus, a right shoulder disability and a knife wound to the knee during service, and no such conditions were identified during the October 1946 separation examination. The veteran was diagnosed with tonsillitis in May 1947, almost a year after separation from service. Pes planus and chronic pharyngitis were first identified in a May 1948 VA outpatient record, almost two years after separation from service. The initial denial of the claims of entitlement to service connection for a right shoulder disability, residuals of a nose bleed, Graves' disease and a knife wound to the left knee was predicated on lack of a current disability, as well as no evidence of in-service disease [Hickson elements (1) and (2)]. Hickson element (3), medical nexus, was also necessarily lacking for these claims. The initial denial of the claims of entitlement to service connection for pes planus and a throat disability was predicated on the absence of evidence of an in-service disease or injury [Hickson element (2)]. Hickson element (3), medical nexus, was also necessarily lacking for these claims. The most recent decision denying entitlement to service connection for pes planus, a right shoulder disability and residuals of a nose bleed was the January 1949 rating decision. That decision was not appealed and is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2007). The most recent decision denying entitlement to service connection for a throat disability, Graves' disease and a knife wound to the left knee was the September 1986 rating decision. That decision also was unappealed and is final. As explained above, the veteran's claims for service connection may be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2007). Therefore, the Board's inquiry will be directed to the question of whether any additionally received (i.e. after January 1949 for the claims for pes planus, a right shoulder disability and residuals of a nose bleed; and after September 1986 for the claims for a throat disability, Graves' disease and a knife wound to the left knee) evidence bears directly and substantially upon the specific matters under consideration, namely the elements were previously lacking. The evidence added to the veteran's claims folder since the last final decisions consists of a letter written from the veteran to his mother during service indicating that he was hospitalized, a newspaper clipping, a lay statement from K.W.R., medical treatise evidence, duplicate copies of the veteran's service records and certain VA outpatient treatment records which had been previously considered by the RO, updated VA outpatient treatment records, a May 2004 VA examination report and the veteran's numerous written statements. The copies of the veteran's service records are not new in that they were of record and were considered by the RO in the initial adjudication of the veteran's claims for service connection. The letter from the veteran to his mother dated in August 1946 indicates that he was in the hospital because he was hurt while working on a ship. This letter can be considered new in that it was not associated with the claims folder prior to issuance of the January 1949 and September 1986 rating decisions. However, the letter is cumulative and redundant of evidence previously of record, namely service medical records which document an in-service hospitalization, and is thus not so significant that it must be considered in order to fairly decide the merits of the claims. With respect to the veteran's own statements, which are to the effect that he has various claimed disabilities and that such are related to his military service, these statements are essentially reiterations of similar contentions raised in connection with his previous claims and were previously considered by the RO. These statements are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, lay persons without medical training, such as the veteran, are not competent to opine on medical matters such as diagnosis and etiology. In Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that laypersons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court noted "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108." The newspaper clipping and the June 2003 lay statement from K.W.R. concern matters which are irrelevant to the matter of a current diagnosis of a right shoulder disability, residuals of a nose bleed, Graves' disease and a knife wound to the left knee and the presence of such in service (see Evans, supra); or the presence of pes planus and a throat disability in service. They are therefore not material to the claims. The veteran also submitted medical treatise evidence concerning various thyroid conditions, including Graves' disease. Medical treatise evidence which is general, speculative or inconclusive cannot support a claim. See Sacks v. West, 11 Vet.App. 314 (1998). This applies to the treatise evidence submitted by the veteran, which in no way pertains to his specific circumstances. See also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Thus, while the medical treatise evidence is new, it is not material, as it is too general and inconclusive to raise a reasonable possibility of supporting the veteran's claim for Graves' disease. Recent VA medical records document ongoing medical treatment for various unrelated health issues. These reports, though new, do not indicate that the veteran has any current pes planus, throat disability, right shoulder disability, residuals of a nose bleed, Graves' disease or knife wound to the left knee. These medical records therefore are not material to those claims. The veteran presented for a VA examination in May 2004. The examiner determined that "There currently is insufficient clinical evidence to support a diagnosis of Graves' disease and there are certainly no evidence at this time of Graves' disease. Additionally, there are no residuals at this time from epistaxis [nose bleed] and there is no evidence of chronic sinusitis or allergic rhinitis related to nosebleeds or throat condition." Such evidence, which works against the veteran's claims is not material. See Villalobos v. Principi, 3 Vet. App. 450 (1992) [evidence that is unfavorable to a claimant is not new and material]. In short, the additionally added evidence does not serve to establish, or even suggest, that the veteran has a current diagnosis of a right shoulder disability, residuals of a nose bleed, Graves' disease and a knife wound to the knee and the presence of such in service; or that pes planus or a throat disability were present in service. The evidence submitted subsequent to the January 1949 denial of the claims for pes planus, a right shoulder disability and residuals of a nose bleed and after the September 1986 denial of the claims for a throat disability, Graves' disease and a knife wound to the left knee is therefore cumulative and redundant of the evidence of record at the time of the last final denials, and it therefore does not raise a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.156 (2001). Accordingly, new and material evidence has not been submitted, and the claims for entitlement to service connection for pes planus, a throat disability, a right shoulder disability, residuals of a nose bleed, Graves' disease and a knife wound to the left knee are not reopened. The benefits sought on appeal remain denied. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000), [a veteran seeking disability benefits must establish a connection between the veteran's service and the claimed disability]. ORDER The request to reopen the previously denied claim of entitlement to service connection for pes planus is denied. The request to reopen the previously denied claim of entitlement to service connection for a throat disability is denied. The request to reopen the previously denied claim of entitlement to service connection for a right shoulder disability is denied. The request to reopen the previously denied claim of entitlement to service connection for residuals of a nose bleed is denied. The request to reopen the previously denied claim of entitlement to service connection for Graves' disease is denied. The request to reopen the previously denied claim of entitlement to service connection for a knife wound to the left knee is denied. REMAND 7. Entitlement to an increased (compensable) disability rating for service-connected foot fungus. As was described in the Introduction above, in March 2007 the RO granted service connection for foot fungus and assigned a noncompensable disability rating. The veteran through his representative has since expressed disagreement with the disability rating assigned in that determination. See the January 16, 2008 Appellant's Brief. The Board construes the statement made by the veteran's representative as a timely notice of disagreement with the March 2007 rating decision. See38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.301, 20.302 (2007); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) [VA must liberally construe all documents filed by a claimant]. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a notice of disagreement is filed but a SOC has not been issued, the Board must remand the claims to the agency of original jurisdiction so that a SOC may be issued. In view of the foregoing, the increased rating issue is REMANDED to the Veterans Benefits Administration (VBA) for the following action: After providing any appropriate VCAA notice, VBA should issue a SOC pertaining to the issue of the veteran's entitlement to a compensable disability rating for service-connected foot fungus. In connection therewith, the veteran should be provided with appropriate notice of his appellate rights. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs