Citation Nr: 1034892 Decision Date: 09/16/10 Archive Date: 09/21/10 DOCKET NO. 06-31 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for restless leg syndrome (RLS) as secondary to a service-connected low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from October 1991 to October 1996. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The record reflects that the Veteran submitted additional evidence to the Board accompanied by a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. See waiver of Regional Office Consideration, dated November 2006. By way of procedural history, in November 2002, the RO denied the Veteran's claim for service connection for nervous leg syndrome as secondary to service-connected degenerative joint disease and disc disease of the lumbar spine. He did not appeal that determination and it became final. See 38 U.S.C.A. § 7105. In October 2004 and July 2005 rating decisions, the RO denied the Veteran's application to reopen his claim for service connection for restless leg syndrome. The Veteran submitted a timely notice of disagreement in December 2005, but subsequently elected de novo review by a Decision Review Officer (DRO). In the August 2006 de novo readjudication/supplemental statement of the case, the DRO reopened and denied the Veteran's claim for service connection for RLS as secondary to the service-connected low back disability. The Veteran then submitted a timely appeal (VA Form 9) in September 2006. The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for restless leg syndrome as secondary to the service-connected low back disability is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. An unappealed November 2002 rating decision denied service connection for RLS as secondary to a service-connected low back disability as there was no medical relationship between RLS and lumbar spine disease. 2. The additional evidence received since the November 2002 rating decision still does not suggest the Veteran's RLS is proximately due to the service-connected low back disability or to service. CONCLUSIONS OF LAW 1. The November 2002 rating decision which denied service connection for RLS as secondary to a service-connected low back disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. The additional evidence submitted since the November 2002 rating decision is not new and material, and the claim for service connection for RLS as secondary to the service-connected low back disability is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R §§ 3.102, 3.156, 3.159 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent possible, VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or a supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, VA adjudicators are required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). In addition, the VCAA 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. VCAA notice errors, concerning any element of a claim, are presumed prejudicial unless VA rebuts this presumption by showing the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Also, obviously, if the Board is granting the requested benefit, this, too, would render any notice error nonprejudicial. In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in June 2004, March 2006, and November 2006. These letters informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining supporting evidence. The June 2004 letter complies with the Court's holding in Kent, supra, in that it included the criteria for reopening a previously denied claim, the criteria for establishing service connection for RLS as secondary to a service-connected condition, and information concerning why this claims was previously denied by the RO in November 2002. Consequently, the Board finds that adequate notice has been provided, as the Veteran was informed of what evidence was necessary to substantiate the elements required to establish this claim for service connection was found insufficient in the previous denial. The Board also finds that VA fulfilled its duty to assist the Veteran by obtaining all relevant VA records in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In any event, the VCAA appears to have left intact the requirement that a Veteran present new and material evidence to reopen a final decision under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceed to evaluate the merits of the claim. See 38 U.S.C.A. § 5103A(f); see also Paralyzed Veterans of America, 345 F.3d 1334 (Fed. Cir. 2003). Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or the Court. New and Material Evidence - Restless Leg Syndrome As Secondary To a Service-Connected Low Back Disability At the outset, it is noted that the Veteran does not contend, nor does the record otherwise demonstrate that restless leg syndrome had its onset during service. Rather, the Veteran is seeking service connection for restless leg syndrome as secondary to his service-connected low back disability. However, the Board must first determine whether new and material evidence has been submitted to reopen his claim since an unappealed, and therefore final, rating decision denied this claim in November 2002. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). In a November 2002 rating decision, the RO denied the Veteran's claim based on an October 2002 VA examination report which found that his restless leg syndrome was less likely than not related to his service-connected lumbar spine disease. In this regard, the October 2002 VA examiner explained that there was no known etiology for this condition, and that, in his opinion there was no relationship between RLS and the service-connected lumbar spine disability. Accordingly, in November 2002, the RO denied the Veteran's claim on the basis that there was no medical relationship between RLS and the service-connected lumbar spine disease. The Veteran was notified of the November 2002 rating decision and of his appellate rights in a letter dated in January 2003. However, since he did not seek appellate review within one year of notification, that decision became final and binding on him based on the evidence then of record and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105(c); see also 38 C.F.R. §§ 20.302, 20.1103. In March 2004 and in April 2005, the Veteran attempted to reopen his claim for service connection for restless leg syndrome. His requests were denied in October 2004 and July 2005 rating decisions. In December 2005, the Veteran submitted a timely Notice of Disagreement, and in January 2006 he elected DRO review of his claim. In August 2006, the DRO reopened and denied the Veteran's claim for restless leg syndrome. A timely substantive appeal was filed in September 2006 and the current appeal ensued. Under VA law and regulation, if new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. See 38 U.S.C.A. § 5108. When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" 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, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or 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. Second, if VA determines that the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winter v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The newly presented evidence need not be probative of all the elements required to award the claim, but it must be probative as to each element that was a specified basis for the last disallowance. Id at 284. The evidence that must be considered in determining whether there is a basis for reopening the Veteran's claim is evidence that has been added to the record since the November 2002 rating decision. Since that decision, the Veteran has submitted the following: (1) VA medical records showing continuing treatment for restless leg syndrome; (2) internet articles regarding the medication, Mirapex, which the Veteran has been prescribed to treat his RLS symptoms; (3) a statement from the Veteran's wife dated in August 2004; and (4) statements from the Veteran in support of his claim. These records are "new" in that they did not exist at the time of the most recent final November 2002 rating decision. However, since none of the medical records indicate that the Veteran's RLS is proximately due to, or the result of his service-connected lumbar spine disability, they are not material to the central issue in this case. Indeed, the outpatient VA treatment records dated from 2002 to 2005 simply show continuing treatment for restless leg syndrome. Of note, is a March 2005 VA neurology consultation note which revealed that the Veteran's sensory and reflex testing was normal; at that time, the examining VA physician stated that restless leg syndrome (in general) could be associated with low iron stores. It was recommended that the Veteran be placed on additional iron supplements and a trial of Mirapex. A subsequent EMG study in March 2005 revealed no significant abnormalities, no signs of peripheral neuropathy, and no radiculopathy of the cervical or lumbar spine. A November 2005 C & P examination, which was conducted in connection with a different claim, showed no complaints of restless leg syndrome, and further indicated that there was no sensory loss, no muscle wasting, and no abnormal reflexes in the lower extremities. In other words, none of the VA treatment records that have been associated with the claims file since the last final denial in November 2002 indicate that there is a relationship between RLS and the service-connected low back disability. Likewise, the Veteran has submitted internet articles regarding Mirapex, a prescription medication that he uses to treat his restless leg syndrome symptoms. However, these articles fail to indicate that there is any relationship between restless leg syndrome and lumbar spine conditions. In fact, one article states that there is "no identifiable reason," or etiology for RLS. None of the newly submitted medical records either relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. Thus, the medical records submitted since the November 2002 rating decision cannot serve as grounds for reopening the claim. See 38 C.F.R. § 3.156. With respect to the Veteran's statements and those of his wife, the Board acknowledges their contentions that the RLS is proximately due to the service-connected lumbar spine disability. However, the Board emphasizes that statements provided by the Veteran and his wife are not material within the meaning of 38 C.F.R. § 3.156. In Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions or diagnoses and that such evidence does not provide a basis on which to reopen a claim of service connection. As a whole, the evidence received since the November 2002 rating decision, when viewed either alone or in light of all of the evidence of record, is not new and material. Therefore, the November 2002 rating decision remains final and the appeal is denied. To reopen his claim, the Veteran needs to submit medical evidence showing that the RLS is somehow related to his service- connected low back disability or to service. ORDER The petition to reopen the claim for service connection for restless leg syndrome as secondary to a service-connected low back disability is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs