Citation Nr: 1007167 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-03 204A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Whether new and material evidence has been presented to reopen the claim of service connection for bilateral pes planus with hereditary exostosis of the right distal tibia. 2. Entitlement to service connection for a right leg disability secondary to pes planus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1967 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2007, the Veteran appeared at a hearing before a Decision Review Officer. In December 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. Transcripts of the hearings are in the claims file. Although the RO reopened the claim, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). For this reason, the Board has restyled the claim. FINDINGS OF FACT 1. In a rating decision in October 2001, the RO denied the reopening of the claim of service connection for bilateral pes planus with hereditary exostosis of the right distal tibia because no new and material evidence had been presented; after the Veteran was notified of the adverse determination, he did not perfect his appeal of the denial of the claim and the rating decision became final. 2. The additional evidence presented since the rating decision by the RO in October 2001 is cumulative of evidence previously considered. 3. Service connection for pes planus has not been established as a predicate for the claim of secondary service connection for a right leg disability. CONCLUSIONS OF LAW 1. The rating decision in October 2001 by the RO, denying the reopening of the claim of service connection for bilateral pes planus with hereditary exostosis of the right distal tibia, became final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has not been presented to reopen the claim of service connection for bilateral pes planus with hereditary exostosis of the right distal tibia. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2009). 3. Secondary service connection for a right leg disability lacks legal merit. 38 U.S.C.A. §§ 1110, 5107 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in June 2006. The notice included the type of evidence needed to reopen the claim of service connection, that is, new and material evidence, namely, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and pertained to the reason the claim was previously denied. The notice included the type of evidence needed to substantiate the underlying claim of service connection as well as a claim of secondary service connection. The Veteran was notified that VA would obtain service records, VA records and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. The notice included the general provisions for the effective date of the claim and for the degree of disability assignable. As for the content and timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Kent v. Nicholson, 20 Vet. App. 1 (2006) (new and material evidence necessary to reopen a service connection claim element of new and material evidence); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). And no further VCAA notice is needed. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records, as well as pertinent VA records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. Under the duty to assist, a VA medical examination or medical opinion is not authorized on a claim to reopen a previously denied claim of service connection unless new and material evidence is presented. 38 C.F.R. §3.159(c)(4)(iii). Moreover, as the claim of service connection for a right leg condition is derivative of the claim to reopen the previously denied claim of service connection for bilateral pes planus, a VA medical examination is not required for a condition secondary to a disability for which service connection has not yet been established. Therefore, a medical examination or medical opinion is not required to decide the claims under 38 C.F.R. § 3.159(c)(4). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Although the rating decision by the RO in October 2001 became final, it may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. §§ 7104 and 5108. As the application to reopen the claim was received in April 2006, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In order that the additional evidence be considered new and material, the evidence must relate to the basis for the prior denial of the claim, that is, evidence that the bilateral pes planus with hereditary exostosis of the distal right tibia was incurred in or aggravated by service. In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence Previously Considered The evidence previously considered consists of the service treatment records showing a diagnosis of pes planus and hereditary exostosis and a Medical Board finding that the conditions existed prior to service entry and were not aggravated by service. After service, VA records show treatment for pes planus. New Evidence The additional evidence submitted since the rating decision in October 2001 includes statements by the Veteran in June 2006, in November 2006, and in February 2007, the Veteran's testimony in July 2007 and in December 2009, and VA records showing treatment for pes planus. In his statements, the Veteran asserts that although he had flat feet prior to service, the condition only became symptomatic as a result of his work aboard ship, including standing on the metal deck, and it was his severe pain and difficulty walking which led to his premature discharge from service. This evidence is not new and material evidence because it is cumulative, that is, supporting evidence of previously considered evidence, namely, the Medical Report in service, and cumulative evidence does not meet the standard of new and material evidence under 38 C.F.R. § 3.156. In his testimony, the Veteran testified that his flat feet were not noted at service entrance, and although he reported problems with his feet during recruit training, he did not receive any treatment until he had been aboard ship for three to four months. This evidence is not new and material evidence because it is cumulative, that is, supporting evidence of previously considered evidence, namely, the Medical Report in service, and cumulative evidence does not meet the standard of new and material evidence under 38 C.F.R. § 3.156. VA records show that in July 2007 the Veteran was seen in consultation regarding the need for a new cane. This evidence is not new and material evidence because it is cumulative, that is, supporting evidence of previously considered evidence, namely, treatment for pes planus after service, and cumulative evidence does not meet the standard of new and material evidence under 38 C.F.R. § 3.156. For the above reasons, the additional evidence is not new and material. As the claim is not reopened, the benefit-of- the- doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Right Leg Disability Secondary service connection may be granted for a disability that is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen, additionally, other substantive changes were made. The Veteran maintains that his pes planus with hereditary exostosis of the right distal tibia caused or aggravated his right leg condition. The claim is one of secondary service connection, and the condition precedent to secondary service connection is an established service-connected disability. As the claim of service connection for bilateral pes planus has not been reopened, there is no legal or factual merit to the claim of secondary service connection for a right leg disability. It is not argued and the record does not show a right leg disability was present in service. ORDER As new and material evidence has not been presented, the claim of service connection for bilateral pes planus with hereditary exostosis of the distal right tibia is not reopened, and the appeal is denied. Service connection for a right leg disability secondary to pes planus is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs