Citation Nr: 1123089 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 09-00 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been presented to reopen the claim of service connection for foreign bodies, two pieces, medial inferior surface, right heel (claimed as a right foot disorder). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1970 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2008 of a Department of Veterans Affairs (VA) Regional Office (RO), which denied, in pertinent part, the Veteran's request to reopen a previously denied claim of service connection for a right foot disorder on the grounds of no new and material evidence. In March 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Waco, Texas. A transcript of the hearing is in the claims file. The issue of clear and unmistakable error in the prior RO decision, which was raised by the Veteran's representative during the March 2011 Board hearing, is referred back to the agency of original jurisdiction for appropriate action. FINDINGS OF FACT 1. In a rating decision in March 1971, the RO denied service connection for "foreign bodies, two pieces, medial inferior surface, right heel" (a right foot disorder) on the grounds that the disorder preexisted the Veteran's entry into service and was not aggravated by service. After the Veteran was notified of the adverse decision and of his right to appeal, he did not appeal and the decision became final by operation of law based on the evidence then of record. 2. The evidence presented since the March 1971 rating decision is not new and material evidence and does not raise a reasonable possibility of substantiating the claims of service connection for a right foot disorder. CONCLUSIONS OF LAW 1. The rating decision in March 1971 by the RO, denying service connection for foreign bodies, two pieces, medial inferior surface, right heel/a right foot disorder, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2010). 2. The additional evidence presented since the rating decision in March 1971 by the RO, denying service connection for foreign bodies, two pieces, medial inferior surface, right heel/a right foot disorder, is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and implemented in part at 38 C.F.R. § 3.159 (2009), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), 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. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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). In a new and material evidence claim, the notice must include notice of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in November 2007. The Veteran was notified that new and material evidence was needed to reopen the claims; that is, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and that pertained to the reason the claim was previously denied, that is, the Veteran's pre-existing right foot disorder was not aggravated by service. The Veteran was further notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit records not in the custody of a Federal agency, such as private medical records or authorize VA to obtain private medical records on his behalf. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication VCAA notice)); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records (STRs), VA, and private treatment records. The Veteran also testified before the undersigned Veterans Law Judge; and a transcript of the hearing is in the claims file. There is no indication of any evidence pertinent to the Veteran's claim which has not already been obtained and associated with the claims file. The Board accordingly concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 1971 the RO denied service connection for "foreign bodies, 2 pieces, medial inferior surface, right heel" on the grounds that the disorder preexisted the Veteran's entry into service and was not aggravated by service. After the Veteran was notified of the decision and of his right to appeal, he did not appeal and the decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. Although the 1971 decision is final, the claim of service connection may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. In October 2007 the Veteran filed a claim of service connection for a right foot disorder, which he wrote was incurred on September 15, 1970. In a rating decision dated in May 2008 the RO denied the issue of service connection for "foreign bodies, 2 pieces, medial inferior surface, right heel (claimed as right foot condition)" on the grounds of no new and material evidence. Where, as here, a claim of service connection has been previously denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been presented. And whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). The Board notes that a change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service-connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.13, 4.125 (2008); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In this case, the Veteran's current claim for service connection for a right foot disorder is based on the same factual premise as his December 1970 claim for "right foot (aggravated by service)," which was denied in the March 1971 rating decision. Since the current claim is based on the same factual basis as the time the case was last decided on the merits, new and material evidence is necessary to reopen the claim. Id. New evidence 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 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. In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim. In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). See also Shade v. Shinseki, 24 Vet. App. 110, 124 (2010) (noting that "[n]ew and material evidence is evidence that -if found credible- would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence that could lead to the granting of the claim). Evidence Previously Considered The evidence considered at the time of the rating decision in March 1971 consisted of service treatment records (STRs), which include the following: o The Veteran's complaints in March 1970 of a knot on the bottom of his right foot, and examination findings of a small, very tender, firm mass on the plantar aspect of the right foot; o the Veteran's report in March 1970 that he stepped on glass approximately 7 years before; o x-ray findings in March 1970 of at least 3 large foreign bodies lodged in the right foot; o surgical removal in March 1970 of a fragment of glass from the right foot; o a September 1970 Podiatry Clinic record of continuous pain secondary to glass in the right foot for 7 years; and o a September-October 1970 Medical Board finding that the Veteran was medically unfit for service secondary to two pieces of foreign bodies in the medial inferior surface of the right heel that existed prior to service. Medical Board proceedings document the Veteran as reporting that at the age of 14 he walked on a broken bottle sustaining a foreign body in the right os-calcis area of his right foot. Additional Evidence and Analysis As stated before, in March 1971 the RO denied service connection for a right foot disorder on the grounds that the disorder preexisted the Veteran's entry into service and was not aggravated by service. In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim. The additional evidence presented since the March 1971 rating decision consists of the following: o Private treatment records dating from December 1983 to January 2008. This evidence, while new, is not material, since it does not relate to the basis of the prior denial, on the merits, of the claim for service connection; that is, whether a pre-service right foot disorder was aggravated during service. o A written statement from the Veteran dated in November 2007, in which he averred that that he never had a foot problem before service. This evidence is inherently incredible (see King, 5 Vet. App. 19, 21) since it contradicts the Veteran's contemporaneously made statements during service in March and September, 1970, of a broken glass injury to the right foot prior to service. It accordingly does not constitute new and material evidence. See Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). o The Veteran's additional remarks in his November 2007 correspondence that his foot became sore on the large rocks at his basic training site; that examination of the foot revealed that two pieces of glass were imbedded in the foot; and that efforts to remove all of the glass were unsuccessful. This evidence is cumulative and redundant of the evidence in STRs, which was of record at the time of the prior denial of the claim on the merits. It thus does not constitute new and material evidence. o VA treatment records dating from February 2007 to January 2011, which include complaints in 2007 of foot pain. This evidence does not relate to the basis of the prior denial, on the merits, of the claim for service connection; that is, whether a pre-service right foot disorder was aggravated during service. It accordingly does not raise a reasonable possibility of substantiating the claim of service connection, and so does not constitute new and material evidence. o The Veteran's March 2011 testimony that glass was imbedded in his foot at his age of 4; not his age of 14. This evidence, while new, opposes the Veteran's claim of service connection, since it merely confirms that the Veteran had a preexisting right foot disorder at the time of his entry into service. It thus does not constitute new and material evidence. o The Veteran's March 2011 testimony that he never had a foot problem before service. This evidence is incredible since it contradicts the Veteran's contemporaneously made statements in March and September, 1970, of a broken glass injury to the right foot prior to service. King, 5 Vet. App. 19, 21. It accordingly does not constitute new and material evidence. o The Veteran's March 2011 testimony that his right foot became sore on large rocks at his basic training site; that examination during service revealed three pieces of glass in the foot; and that efforts to remove all of the glass were unsuccessful. This evidence is cumulative and redundant of the evidence in STRs, which was of record at the time of the prior denial on the merits. It thus does not constitute new and material evidence. Accordingly, in the absence of any new and material evidence, the claim of service connection for foreign bodies, two pieces, medial inferior surface, right heel (claimed as a right foot disorder) is not reopened. The benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). (CONTINUED ON NEXT PAGE) ORDER As new and material evidence has not been presented, the claim of service connection for foreign bodies, two pieces, medial inferior surface, right heel (claimed as a right foot disorder) is not reopened, and the appeal is denied. ____________________________________________ M. Sabulsky Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs