Citation Nr: 1036634 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 06-27 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right thumb disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which found that new and material evidence had not been submitted to reopen the Veteran's claim. The Board notes that the Veteran has claimed entitlement to compensation pursuant to 38 U.S.C.A. § 1151 based on two separate incidents. The first claim is based on an injury to the right thumb that the Veteran alleged occurred at the VA Medical Center (VAMC) in 1993. The second claim is based on alleged complications from May 2005 carpal tunnel surgery to the right hand and wrist. The RO has only developed the first claim for compensation pursuant to 38 U.S.C.A. § 1151 as due to injury that was allegedly incurred at the VAMC in 1993. The other claim for compensation pursuant to 38 U.S.C.A. § 1151 (based on May 2005 carpal tunnel surgery) has not been properly developed on appeal. Therefore, this issue is referred to the Agency of Original Jurisdiction for appropriate action. FINDINGS OF FACT 1. An unappealed December 1998 rating decision denied entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right thumb disability. 2. The evidence submitted since the December 1998 rating decision, by itself, or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right thumb disability, and does not raise a reasonable possibility of substantiating that claim. CONCLUSION OF LAW The December 1998 rating decision is final; new and material evidence has not been received to reopen the claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right thumb disability. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156(a), 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. With respect to a request to reopen a previously denied claim, a claimant must be notified of both what is needed to reopen the claim and what is needed to establish the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the RO provided notice to the appellant in a February 2005 pre-rating letter regarding what information and evidence was needed to substantiate the Veteran's petition to reopen his claim for compensation pursuant to 38 U.S.C.A. § 1151, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter was also compliant with Kent. The December 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the February 2005 letter. The Board notes that the Veteran has not been provided specific notice regarding VA's assignment of disability ratings and effective dates pursuant to Dingess/Hartman, 19 Vet. App. 473 (2006). However, the absence of such notice is not shown to prejudice the Veteran. Because the Board herein denies the Veteran's petition to reopen his claim for entitlement to compensation pursuant to 38 U.S.C.A. § 1151, no disability rating or effective date will be assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record additionally reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the claims on appeal. Pertinent medical evidence associated with the claims file consists of service, Social Security Administration, and VA treatment records. The Board finds that no additional RO action to further develop the record in connection with this claim is warranted. The Board notes that the Veteran was not provided with a VA examination in response to his claim. Under 38 C.F.R. § 3.159(c)(4)(iii) (2009), providing a VA examination in a new and material evidence claim can only be considered if new and material evidence is actually presented or secured. As Board finds that the Veteran did not present new and material evidence in this claim, a VA examination is not appropriate here. In sum, the Board is satisfied that any procedural errors in development and consideration of the claim were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim on appeal. Legal Criteria Under 38 U.S.C.A. § 1151, a veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. See also 38 C.F.R. §§ 3.154, 3.358, 3.361, 3.362, 3.363. Under the law, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2009). If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. Id.; Justus v. Principi, 3 Vet. App. 510 (1992). Analysis The petition to reopen was denied by the RO in December 2005, and subsequently denied in a May 2006 statement of the case. In September 2008 and November 2008 supplemental statements of the case, however, the RO essentially addressed the issue on a de novo basis without comment as to reopening. The Board notes, however, that even if the RO determined that new and material evidence was presented to reopen the claim on appeal, such is not binding on the Board. Rather, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran was originally denied entitlement to compensation pursuant to 38 U.S.C.A. § 1151 because the evidence of record failed to establish that any medical action by the VAMC was the proximate cause of the claimed right thumb disability. See December 1998 rating decision. The evidence indicated that the Veteran was in the domiciliary, not the VAMC, in 1993 when he hurt his right thumb lifting weights and playing basketball. Therefore, for evidence to be new and material, it must relate to establishing that an additional disability was caused by hospital care, medical or surgical treatment, or examination either by a VA employee or in a VA facility, and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. Newly-submitted evidence since the December 1998 rating decision includes medical records from the VAMC. These medical records do not indicate that any hospital care, medical or surgical treatment, or examination by VA proximately caused an additional disability to the Veteran in the mid-1990's. The Veteran specifically indicated that his 38 U.S.C.A. § 1151 claim was based upon an injury he incurred at VAMC Hampton. The evidence of record (that was associated with the file at the time of the last final decision) reflects that the Veteran injured his thumb lifting weights in October 1993 and playing basketball in December 1993 while at the domiciliary. The Veteran has not submitted any new and material evidence to indicate that a right thumb disability was caused by hospital care, medical or surgical treatment, or examination by VA. The Board finds that the additionally received medical evidence is "new" in the sense that it was not previously before agency decision makers. However, as noted above, in the December 1998 denial, the RO essentially found that the evidence of record did not contain proof that the Veteran's right thumb disability was caused by hospital care, medical or surgical treatment, or examination in a VA facility. The additional medical evidence added to the record does nothing to change any such finding. In sum, the medical evidence received since December 1998 still does not establish a claim for compensation pursuant to 38 U.S.C.A. § 1151 for a right thumb disability. Thus, even if some of this evidence could, in a limited sense, be considered "new," none of the evidence is material because it provides no reasonable possibility of substantiating the claim. The Board has also considered the lay assertions of the Veteran, as well those advanced by his representative, on his behalf, in various written documents of record. The Veteran, however, asserts that injury-unrelated to VA medical treatment-entitles him to compensation pursuant to 38 U.S.C.A. § 1151. This type of injury is not an adequate basis to establish a claim under 38 U.S.C.A. § 1151. Furthermore, lay assertions of medical causation cannot suffice as new and material evidence to reopen a claim. Moray v. Brown, 5 Vet. App. 211 (1993). In any event, the Veteran's own assertions of etiology, at their essence, are duplicative of those raised or implied in his earlier claim. Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right thumb disability have not been met, and the December 1998 RO denial of the claim remains final. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of- the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right thumb disability is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs