Citation Nr: 1120844 Decision Date: 05/28/11 Archive Date: 06/06/11 DOCKET NO. 08-23 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether there is new and material evidence to reopen a claim for service connection for a left leg disorder as a residual of a femur fracture. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to August 1953. This appeal to the Board of Veterans' Appeals (Board) is from an October 2007 rating decision by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which determined there was not new and material evidence and, therefore, denied the Veteran's petition to reopen his claim. In July 2009, the Board remanded the claim for further development and consideration - including especially to provide additional notice required by the Veterans Claims Assistance Act (VCAA) regarding petitions to reopen previously denied claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran received this additional Kent notice later in July 2009, and again in December 2009 and November 2010, and after considering his response to this additional notice and other evidence obtained and attempts to obtain other evidence, the Appeals Management Center (AMC), which conducted this additional remand development of his claim in lieu of the RO, issued a supplemental statement of the case (SSOC) in March 2011 continuing to deny the petition to reopen his claim. In response to that SSOC, the Veteran submitted additional evidence later in March 2011 and waived his right to have the RO initially consider this additional evidence and any other evidence he may have submitted before this decision. 38 C.F.R. §§ 20.800, 20.1304 (2010). The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The petition to reopen this claim for service connection for a left leg disorder was previously considered and denied in a June 2007 Board decision, which the Veteran did not appeal. 2. The additional medical and other evidence since received is cumulative or redundant of evidence already considered in that decision and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The June 2007 Board decision previously denying the petition to reopen the claim for service connection for a left leg disorder is final and binding on the Veteran based on the evidence then of record. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2010). 2. There is not new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As a preliminary matter and, as already alluded to, the reason the Board remanded this claim in July 2009, the Board is required to address the VCAA that was enacted into law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining this evidence and apprise him or whose specific responsibility - his or VA's, it ultimately is for obtaining this supporting evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. And following and as a result of the Board's July 2009 remand, the Veteran has received this required notice and assistance. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this regard, the Board finds that letters dated in September 2007, October 2008, July and December 2009, and November 2010, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Kent v. Nicholson, 20 Vet. App. 1 (2006). The letters notified him of the evidence and information necessary to substantiate his claim and informed him of his and VA's respective responsibilities in obtaining this evidence. The September 2007 letter was sent prior to the initial adjudication of his claim in October 2007, so in the preferred sequence, but the other letters were not. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). Nevertheless, since sending him those additional VCAA letters to provide all required notice, including concerning the requirements indicated in Kent, his claim has been readjudicated in the March 2011 SSOC to effectively "cure" the timing defect in the provision of those additional notices. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) and Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). And as for the duty to assist him with his claim, the Board sees that the RO and AMC obtained his service treatment records, VA treatment records, and private medical records - as least to the extent these records were obtainable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. According to a September 2010 memorandum in the file, the AMC made a formal finding on the unavailability of any additional medical records - and specifically concerning any additional medical records at the VA Medical Center (VAMC) in San Juan. This memorandum certifies that all procedures to obtain these records have been correctly followed and explains and documents in the file these efforts. The AMC therefore concluded that further efforts to obtain these records would be futile, particularly since, after a third request, the San Juan VAMC had responded there was no record of treatment for the Veteran for the date range selected. According to a deferred rating sheet in the file dated in October 2010, the AMC needed to provide still additional VCAA notice - which, as mentioned, the AMC subsequently did in November 2010. And after having certain other records translated from Spanish to English, the AMC provided the Veteran the aforementioned SSOC in March 2011. And this SSOC confirms that he had been provided a letter in September 2010 concerning the AMC's inability to obtain any additional treatment records from the San Juan VAMC. So he was appropriately notified of the AMC's inability to obtain those additional records and duly apprised of the efforts that were made. 38 C.F.R. § 3.159(c)(2), (c)(3), and (e)(1). The Board realizes the Veteran has not been afforded a VA examination in connection with his claim. But there is no obligation to provide an examination, including for a medical nexus opinion, until there is new and material evidence to reopen the claim. 38 C.F.R. § 3.159(c)(4)(iii). And for reasons and bases that will be discussed, there is no such evidence. Moreover, ultimately, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that a service event or an illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board also concludes, after reviewing all evidence of record, that the preponderance of the evidence is against the Veteran's petition to reopen his claim. As such, any questions as to the appropriate "downstream" disability rating or effective date to be assigned, which only become relevant upon a showing of his entitlement to service connection, are ultimately moot, meaning inconsequential. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So even if he has not received VCAA notice concerning these downstream elements of his claim, this is at most harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial, meaning outcome determinative of his claim). II. Whether there is New and Material Evidence to Reopen the Claim In a November 1987 rating decision, the RO denied the Veteran's claim for service connection for a left leg disorder. He appealed that decision, but the Board also denied his claim in a July 1988 decision. The Board's decision subsumed the RO's. See 38 C.F.R. § 20.1104. The RO subsequently declined to reopen the claim in December 1989, concluding there was not new and material evidence since the prior decision. The petition to reopen this claim has been denied on several additional occasions during the years since, both again by the RO and by the Board on appeal, but most recently by the Board in June 2007. And in the absence of an appeal of that Board decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC), that Board decision is final and binding on the Veteran based on the evidence then of record and marks the starting point for determining whether there is new and material evidence. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. See also Evans v. Brown, 9 Vet. App. 273 (1996) (indicating the evidence to be considered in making this new-and-material determination is that added to the record since the last final denial on any basis). Rather immediately following the Board's most recent denial of the petition to reopen this claim in June 2007, the Veteran submitted yet another petition to reopen this claim in September 2007. It is from that decision, again denying this petition, this appeal ensued. But only if there is new and material evidence since the Board's most recent June 2007 decision would the Board have authority to reopen the claim and review the former disposition. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Irrespective of the RO's/AMC's decision, so, too, must the Board make this threshold preliminary determination of whether there is new and material evidence to reopen this claim, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate the claim on its underlying merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims) and VAOPGCPREC 05-92 (March 4, 1992). If the Board determines there is no new and material evidence, that is where the analysis must end, and what the RO/AMC determined in this regard is irrelevant since further consideration of the claim is neither required nor permitted. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When a petition to reopen a previously denied, unappealed, claim 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, relates to an unestablished fact necessary to substantiate the claim. 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. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence in question is presumed - albeit just for this threshold preliminary determination. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of the all evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step, however, becomes applicable only when the preceding step of new and material evidence is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The evidence before the Board at the time of its prior June 2007 final and binding denial of the petition to reopen this claim consisted of the Veteran's service treatment records, post-service private and VA medical records, and his personal lay statements. The Board noted that VA had denied his claim in past adjudications because the evidence did not relate a current left leg disability to his period of active military service. And there is still no such supporting evidence, only evidence that instead is cumulative or redundant of the evidence already considered or that does not raise a reasonable possibility of substantiating his claim. The additional evidence received since the Board's June 2007 decision consists of VA and private treatment records and personal statements from the Veteran. In a December 2010 statement, he provided a description of the accident in Korea that he says caused his left leg disability. But this statement is nearly identical in content and substance to those he has previously submitted. Cf. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Indeed, even new arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). The treatment records submitted since the Board's June 2007 denial indicate the Veteran is status post open reduction internal fixation (ORIF) of an old healed left subcapital fracture, among other conditions. He is noted in the records to have left femur, or left "thigh bone," pain. He has been noted to have multiple screws transfixing an old healed femoral fracture. But these records merely reiterate he has left leg disability, a point already conceded in past adjudications, and do not also suggest this disability is related to or a result or consequence of his military service, including any injury he may have sustained during his service. Instead, these records merely discuss the his present-day symptoms (like pain, etc.) and the various modalities of treatment (surgery, etc.) that have been undertaken in an effort to alleviate the extent of his impairment and discomfort. Such evidence, however, is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). See, too, Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran's current condition are not material to issue of service connection and are not sufficient to reopen claim for service connection based on new and material evidence). Because this evidence does not also link this disability to his active military service - including, again, to any injury he may have sustained during his service, which was the essential basis of the prior denials of his claim, this evidence does not relate to an unestablished fact necessary to substantiate his claim or raise a reasonable possibility of substantiating his claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). There is only the Veteran's unsubstantiated lay testimony that his current left leg disability is the result of his military service. The Court has held that lay assertions of medical causation generally cannot suffice to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Indeed, in Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again pointed this out. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). So in certain instances, depending on the facts of the particular case at hand, lay evidence may be competent to establish medical etiology (nexus) or diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). This determination, however, depends on the specific type of condition at issue and is more in the context of trying to establish entitlement to service connection once the claim is reopened, so when evaluating its underlying merits. That said, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, though, any potential relationship between the Veteran's left leg disability and his military service turns on a medical, not just lay, determination. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) ( reiterating this axiom in a claim for rheumatic heart disease and indicating that, although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board therefore finds that the evidence added to the record since June 2007 is cumulative of the evidence previously considered and does not relate to an unestablished fact necessary to substantiate the claim. This additional evidence resultantly does not raise a reasonable possibility of substantiating the claim and, thus, is not new and material. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER Because there is not new and material evidence, the petition to reopen the claim for service connection for a left leg disorder, as a residual of a femur fracture, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs