Citation Nr: 1035442	
Decision Date: 09/20/10    Archive Date: 09/28/10

DOCKET NO.  09-47 527	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, 
Wyoming


THE ISSUE

Whether new and material evidence has been received to reopen a 
claim for service connection for a bilateral ankle condition. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H.J. Baucom


INTRODUCTION

The Veteran served in the Army from April 1946 to July 1947, the 
Air Force from April 1951 to October 1951 and the Army from 
November 1956 to November 1958. 

This matter comes before the Board of Veterans' Appeals (BVA or 
Board) from a June 2009 rating decision of the Department of 
Veterans Affairs (VA), Regional Office (RO) in Oakland, 
California, which denied reopening the claim for service 
connection for a bilateral ankle condition. 

Irrespective of the RO's action, the Board must decide whether 
the Veteran has submitted new and material evidence to reopen the 
claim of service connection for bilateral ankle condition.  
Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

This appeal has been advanced on the Board's docket pursuant to 
38 C.F.R. § 20.900(c) (2007).  38 U.S.C.A. § 7107(a)(2) (West 
2002).


FINDINGS OF FACT

1.  In a September 2005 rating decision, the RO denied service 
connection for a bilateral ankle condition.  The Veteran did not 
appeal the decision and the determination is now final. 

2.  Evidence submitted since the RO's September 2005 rating 
decision, by itself or when considered with previous evidence of 
record, does not relate to an unestablished fact necessary to 
substantiate the claim, and does not raise a reasonable 
possibility of substantiating the claim for service connection 
for a bilateral ankle condition.


CONCLUSION OF LAW

Evidence received since September 2005 rating decision is not new 
and material and the criteria to reopen the previously denied 
claim for entitlement to service connection for hypertension are 
not met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 
3.156 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance 

Upon receipt of a complete or substantially complete application, 
VA must notify the claimant of the information and evidence not 
of record that is necessary to substantiate a claim, which 
information and evidence VA will obtain, and which information 
and evidence the claimant is expected to provide.  38 U.S.C.A. § 
5103(a).  

The notice requirements apply to all five elements of a service 
connection claim: 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 of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial 
unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 
Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd 
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

The RO provided the Veteran pre-adjudication notice by letters 
dated August 2008 which substantially complied with the 
specificity requirements of Dingess v. Nicholson, 19 Vet. App. 
473 (2006) identifying the five elements of a service connection 
claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), 
identifying the evidence necessary to substantiate a claim and 
the relative duties of VA and the claimant to obtain evidence.   

The notification also informed the Veteran of the evidence and 
information necessary to reopen the claim for service connection 
for a bilateral ankle condition including the basis on which the 
prior claim was denied in compliance with Kent v. Nicholson, 20 
Vet. App. 1 (2006).

In any event, the Veteran has neither alleged nor demonstrated 
any prejudice with regard to the content or timing of the 
notices.  See Shinseki v. Sanders, 129 S.Ct. 1696, (2009) 
(Reversing prior case law imposing a presumption of prejudice on 
any notice deficiency, and clarifying that the burden of showing 
that an error is harmful, or prejudicial, normally falls upon the 
party attacking the agency's determination.)  See also Mayfield 
v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

VA has obtained service medical records and assisted the Veteran 
in obtaining evidence.  All known and available records relevant 
to the issue on appeal have been obtained and associated with the 
Veteran's claims file; and the Veteran has not contended 
otherwise.  

VA has substantially complied with the notice and assistance 
requirements and the Veteran is not prejudiced by a decision on 
the claim at this time.

Analysis

The Veteran initially contended that his bilateral ankle 
condition was secondary to his service connected pes planus.  

In a September 2005 rating decision, the RO denied service 
connection for a bilateral ankle condition.  The basis of the 
denial was that there was that there was no evidence of a 
bilateral ankle condition in service or within one year of 
discharge, nor any evidence that a bilateral ankle condition was 
related to pes planus.  The determination is now final. 

In August 2008 the Veteran filed another claim for service 
connection for a bilateral ankle condition. 

Generally, when a claim is disallowed, it may not be reopened and 
allowed, and a claim based on the same factual basis may not be 
considered.  Id.  However, a claim on which there is a final 
decision may be reopened if new and material evidence is 
submitted.  38 U.S.C.A. § 5108.

The regulations define 'new' evidence as existing evidence not 
previously submitted to agency decisionmakers.  'Material' 
evidence is defined as existing evidence that, by itself or when 
considered with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.  38 
C.F.R. § 3.156(a).  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.  Id.  When determining whether the claim should be 
reopened, the credibility of the newly submitted evidence is to 
be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

In reaching a determination on whether the claim should be 
reopened, the reason for the prior denial should be considered.  
In essence, at the time of the prior denial, there was no 
evidence of a bilateral ankle condition in service or within one 
year of service.  There was also no evidence of VA treatment for 
a bilateral ankle condition and no evidence that a bilateral 
ankle condition was secondary to pes planus.  

However of note at the time of the September 2005 rating decision 
was a July 2005 examination for pes planus which noted 
hematogenous pigmentation in the ankles bilaterally. 

The Veteran currently contends that he slipped and fell on a log 
in service resulting in deep cuts on the inside left and right 
ankles.   Ashford v. Brown, 10 Vet. App. 120 (1997) (a claim 
based on a new theory of entitlement is not a new claim, but 
constitutes an application to reopen the previously denied 
claim).

Evidence received since the September 2005 RO decision includes 
VA treatment from 2005 through 2009.  At an August 2009 
evaluation the Veteran complained about his ankle skin problems.  
He was diagnosed with moderately severe stasis dermatitis with 
typical brownish-purple discoloration of the lower legs with some 
areas that are cracking with blisters that could ooze.   The 
Veteran told the physician that he thought this condition was 
caused by an incident of slipping on a log resulting in abrasions 
on his legs in service.  The physician opined that it was 
unlikely that the incident could cause something like stasis 
dermatitis this many years later. 

Although, the additional evidence received is new, it is not 
material.  It does not include any evidence which relates to an 
unestablished fact necessary to substantiate the claim. While the 
Veteran now has a more thorough diagnosis of his ankle condition, 
stasis dermatitis, it is not material as this fact does not 
substantiate the claim.  Rather the evidence confirms a denial of 
the claim based on the Veteran's alternative theory as the 
physician opinioned that it was unlikely that an abrasion from a 
log in service 50 years prior could case stasis dermatitis.

The Veteran genuinely believes that his bilateral ankle condition 
was caused by scraping his legs on a log in service.  However, as 
a layperson, lacking in medical training and expertise, the 
Veteran cannot provide a competent opinion on a matter as complex 
as the etiology of stasis dermatitis and his views are of no 
probative value.  And, even if his opinion was entitled to be 
accorded some probative value, it is far outweighed by the 
opinion provided by the physician who evaluated his condition.   
See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In sum, the evidence received since the RO's September 2005 
decision, by itself or when considered with previous evidence of 
record, does not relate to an unestablished fact necessary to 
substantiate the claim, and does not raise a reasonable 
possibility of substantiating the claim.  New and material 
evidence has not been received since the RO's September 2005 
decision and reopening the claim is not warranted.  38 U.S.C.A. 
§§ 5108, 7105; 38 C.F.R. § 3.156.




ORDER

New and material evidence has not been received and the petition 
to reopen a claim for service connection for a bilateral ankle 
condition is denied.  


____________________________________________
MARK W. GREENSTREET
Chief Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs