Citation Nr: 1032452 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 06-21 776A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a left ankle disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction has since been returned to the RO in Montgomery, Alabama. FINDINGS OF FACT 1. The RO initially denied the Veteran's left ankle disorder service connection claim in a December 1979 rating decision. 2. The evidence submitted since December 1979 is cumulative, does not relate to an unestablished fact, and fails to raise a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW New and material evidence has not been submitted, and the Veteran's claim of entitlement to service connection for a left ankle disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.103, 3.156, 20.1103 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by a letter dated in June 2004, which was sent prior to the initial adjudication of the Veteran's claim and which apprised the Veteran of the new and material evidence necessary to reopen his claim and the reason his claim was initially denied, thereby complying with the mandates of Kent v. Nicholson, 20 Vet. App. 1 (2006). As to the duty to assist, all adequately identified treatment records have been obtained. The Veteran was also scheduled to testify at a hearing before the Board, but he failed to appear. The Veteran was not examined for VA purposes because that requirement is not triggered in claims to reopen until new and material evidence has been presented, and as discussed below, the Veteran has not submitted any such evidence. In sum, the Board finds that VA's duties to notify and assist have been met, and therefore there is no prejudice to the Veteran in adjudicating this appeal. Claim to Reopen The RO initially denied the Veteran's left ankle disorder service connection claim in an December 1979 decision. The Veteran failed to appeal this decision, and his claim became final. 38 C.F.R. § 20.1103. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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(a). The RO initially denied the Veteran's service connection claim for a left ankle disorder because the evidence failed to show that the Veteran's left ankle disorder was incurred in or aggravated by service. At the time the RO initially denied the Veteran's service connection claim, the relevant evidence of record consisted of the Veteran's submitted statements, pre-service left ankle treatment records, service treatment records, and a November 1979 VA examination report. The Veteran's submitted statements asserted his belief that the residuals of his pre-service left ankle fracture were permanently aggravated during service. The Veteran's pre-service treatment records included 1972 left ankle operative and x-ray reports, which reflected that the Veteran fractured his ankle in 1972 and underwent surgical repair of the fracture shortly thereafter. The Veteran's service treatment records reflected that the Veteran reported his pre-service left ankle fracture on his entrance medical history report, and that his left ankle fracture residuals became symptomatic during service, eventually resulting in his Medical Board discharge. The report of the Medical Board proceedings reflected that the Medical Board determined that the Veteran's left ankle disorder preexisted service and was not permanently aggravated therein. The November 1979 VA examination report reflected that the Veteran was diagnosed with status post-fracture of the left ankle and osteoarthritic changes. Evidence submitted since the Veteran's service connection denial includes the Veteran and his representative's submitted statements and the Veteran's VA treatment records. The Veteran and his representative continue to assert that the Veteran is entitled to service connection for his left ankle disorder because his left ankle fracture residuals were permanently aggravated by his in-service duties, requiring his eventual discharge from service. The Veteran's VA treatment records reflect the Veteran's report of left ankle pain and left ankle x- rays, which were interpreted to reveal possible osteochondral defects. After reviewing the evidence of record, the Board finds that the Veteran has not submitted new and material evidence to reopen his previously denied claim. The Veteran and his representative's current contentions that his current left ankle disorder is attributable to a permanent aggravation of his pre-service left ankle fracture residuals were previously considered by the December 1979 rating decision that initially denied the Veteran's service connection claim. Furthermore, the Board notes that while the Veteran and his representative believe that the current severity of the Veteran's left ankle disorder is the result of an his in-service duties, neither the Veteran nor his representative are medically qualified to offer an opinion relating the current severity of the Veteran's left ankle disorder to a permanent aggravation caused by service, see Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992), and lay assertions of medical causation cannot serve as the predicate to reopen a claim, Hickson v. West, 11 Vet. App. 374 (1998). Finally, the Veteran's newly submitted VA treatment records do not relate to an unestablished fact necessary to substantiate his claim. While these records reflect that the Veteran continues to have a current left ankle disorder, they do not suggest that the Veteran's current left ankle disorder is attributable to service. Medical records describing the Veteran's current condition are not material to the issue of service connection. See Morton v. Principi, 3 Vet. App. 508 (1992). Accordingly, the Board concludes that the evidence submitted since the December 1979 rating decision is not new and material and does not serve to reopen the Veteran's claim. ORDER New and material evidence not having been submitted, the Veteran's claim of entitlement to service connection for a left ankle disorder is not reopened, and the appeal is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs