Citation Nr: 1133765 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 09-48 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for yellow jaundice. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral flat feet. 3. Entitlement to service connection for a right hip disability. 4. Entitlement to service connection for a left hip disability. ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from December 1942 to March 1946. These claims come before the Board of Veterans' Appeals (Board) on appeal of June 2008 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran, in his VA Form 9, Appeal to Board of Veterans' Appeals, indicated that he desired a hearing before the Board in order to present testimony on the issue on appeal. However, the Veteran failed to report as scheduled, and the Board thus considers the Veteran's request for a hearing withdrawn. 38 C.F.R. § 20.704(d). Accordingly, adjudication of the Veteran's appeal will proceed at this time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). Unfortunately, however, still further due process consideration is required before the Board can adjudicate the Veteran's pending claims of entitlement to service connection for right and left hip disabilities, as well as his petition to reopen his previously denied claim of entitlement to service connection for bilateral flat feet. So, regrettably, these claims are being remanded to the RO via the Appeals Management Center (AMC). VA will notify him if further action is required on his part. FINDINGS OF FACT 1. In an unappealed May 1946 rating decision, the RO denied the Veteran's claim of entitlement to service connection for yellow jaundice. 2. Evidence added to record since the RO's May 1946 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for yellow jaundice and does not raise a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The May 1946 rating decision that denied the Veteran's petition to reopen his previously denied claim of entitlement to service connection for yellow jaundice is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. New and material evidence has not been received to reopen the claim for service connection for yellow jaundice. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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) (2010). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established significant new requirements with respect to the content of the VCAA notice for reopening claims. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. But see Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) ( "§ 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). It need not describe the VA's evaluation of the veteran's particular claim."). VA issued a VCAA notice letter, dated in March 2008, from the agency of original jurisdiction (AOJ) to the appellant. The letter explained the evidence necessary to substantiate the Veteran's petition to reopen, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The Board also finds that the VCAA notification letter is compliant with Kent as to the Veteran's petition to reopen. This letter specifically informed the Veteran as to what evidence would be necessary to substantiate the element or elements that were required to establish service connection that were found insufficient in the previous denial. The Veteran was told to submit evidence pertaining to the reason his claim of entitlement to service connection was previously denied, and the letter notified the Veteran of the reason for the prior final denial (i.e., the elements of the service connection claim that was deficient). In addition, the March 2008 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that was the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, the appellant has not been prejudiced and there was no defect with respect to timing of the VCAA notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained Legal Criteria Service Connection - Generally A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a Veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." As relevant to this appeal, new evidence is existing evidence not previously submitted to agency decision-makers. Material evidence is existing evidence that, by itself or when considered with the previous evidence of record, relates to a fact, not previously established, which is 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 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) (2010). If all of these tests are satisfied, the claim must be reopened. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered. 38 C.F.R. § 3.156(c). Analysis The Veteran's claim of entitlement to service connection for yellow jaundice was initially denied by the RO in a May 1946 rating decision. The rating decision was not appealed and, thus, it is final. See 38 U.S.C.A. § 7105. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board remains whether new and material evidence has been presented to reopen the claim. The May 1946 rating decision denied the Veteran's claim of entitlement to service connection for yellow jaundice on the basis that there was no evidence of yellow jaundice upon separation from service, or upon examination after service; the Veteran was treated for jaundice in August 1944, but it was acute and resolved with treatment. As stated above, in order to reopen a claim, evidence received must be both new and material. Additional evidence received after the prior final denial was not of record at the time of the final RO decision. The Veteran's VA medical records, as well as his multiple statements, are not cumulative and redundant of the evidence in the claims file at the time of the last final rating decision. Thus, that evidence is considered "new." To be material, the evidence must relate to a fact not previously established that is necessary to substantiate the claim, and when viewed in the context of the record as a whole, must raise a reasonable possibility of substantiating the claim. The basis for the RO's prior final denial was that there was no medical evidence of record demonstrating that the Veteran had yellow jaundice or any residuals thereof at, or subsequent to, his discharge from military service. The evidence of record, submitted by the Veteran during the years since the RO's last final rating decision, refers primarily to the evaluation and treatment, i.e., the current diagnosis and severity, of his current medical diagnoses. See Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing the veteran's current condition are immaterial to the issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence). The Board is mindful of the Veteran's assertions that he is entitled to service connection because he was treated for yellow jaundice during his military service. However, such statements must be considered in the context of the record as a whole to determine whether it raises a reasonable possibility of substantiating the claim. An opinion expressed in the term of possibility also implies that it may not be possible and it is too speculative to establish a nexus between the Veteran's disability and service. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (the term "possibility" also implies that it "may not be possible" and it is too speculative to establish a nexus.). In this regard, there is no evidence that the Veteran currently has yellow jaundice, nor is there any evidence that his treatment for yellow jaundice during his military service resulted in any residuals. In short, there is no objective, medical evidence confirming the Veteran's assertions. See Moray v. Brown, 5 Vet. App. 211, 214 (1993) (there must be medical evidence linking a current disability, even assuming the veteran has one, to his service in the military). Additionally, the Board acknowledges that the Veteran has repeatedly asserted that he currently has residuals of yellow jaundice and that those residuals are related to his service. However, the Board again points out the evidence does not demonstrate that the Veteran's currently has residuals of yellow jaundice that are related to his military service. The record remains devoid of any evidence indicating that he has a current disability etiologically related to his treatment for yellow jaundice residuals during his military service. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). As such, the additional evidence considered in conjunction with the record as a whole does not raise a reasonable possibility of substantiating the claim. In short, these medical records, as well as the Veteran's statements, do not demonstrate a causal relationship between his service in the military and his claimed disability, nor do these records otherwise verify the circumstances of his service. See Hickson v. West, 11 Vet. App. 374, 378 (1998); Spalding v. Brown, 10 Vet. App. 6, 11 (1996). Merely reiterating previously made arguments, without independent verification of these assertions, is insufficient grounds to reopen the claim. 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 (1992). In conclusion, new and material evidence to reopen the Veteran's previously denied claim for service connection for yellow jaundice, has not been received subsequent to the last final RO decision. 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). As such, the Veteran's claim is not reopened. ORDER The petition to reopen the claim for service connection for yellow jaundice is denied. REMAND The Veteran's claim of entitlement to service connection for bilateral flat feet was originally denied by the RO in a May 1946 rating decision. No appeal was filed, and this determination is final. See 38 U.S.C.A. § 7105 (West 2002). His petition to reopen his claim of entitlement to service connection for bilateral flat feet was denied by the RO in a February 2010 rating decision. As noted above, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. See Barnett, supra. Although the Veteran was provided a VCAA notice letter in December 2009, it was insufficient in light of the Court's decision in Kent v. Nicholson, 20 Vet. App. 1 (2006); the December 2009 letter did not inform the Veteran that new and material evidence could be submitted to reopen his claim, nor did the letter indicate what type of evidence would qualify as "new" evidence or specifically inform the Veteran as to what evidence would be necessary to substantiate the element or elements required to establish service connection that was found insufficient in the previous denial. In view of the foregoing, the Board finds that the claim must be remanded for compliance with the VCAA and recent case law. See Quartuccio, supra. The Board also notes that the Veteran has not yet been provided with a VA examination which addresses whether the Veteran's claimed right and left hip disabilities are related to his service. In this regard, the Board acknowledges that the Veteran's service treatment records do not show treatment or diagnoses of right or left hip disabilities. Nevertheless, the Board notes that the Veteran claims that, even absent an acute event or injury during service, his cumulative service resulted in his current right and left hip disabilities. The Veteran also contends that he has had continuity of symptomatology in the years following active service. The Board notes that the medical evidence is unclear whether the Veteran's claimed hip disabilities are related causally or etiologically to his active service. A medical examination or a medical opinion should be obtained when such an examination or opinion is necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, additional clinical assessment and medical opinion is necessary to adequately address the Veteran's claims of entitlement to service connection. Accordingly, the Board finds that the Veteran should be afforded a VA examination in order to determine nature and etiology of the Veteran's claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Please send the Veteran a corrective VCAA notice letter under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159(b). The letter must: (a) inform him of the information and evidence that is necessary to reopen his previously denied claim for service connection of bilateral flat feet, in compliance with 38 C.F.R. § 3.156(a) and the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006)); (b) inform him of the information and evidence that VA will seek to provide; (c) inform him of the information and evidence he is expected to provide; and (d) request that he provide any evidence in his possession pertaining to his claim to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). See, too, Huston v. Principi, 17 Vet. App. 195 (2003). In particular, the Veteran must be apprised of the basis for the prior final denial, and informed of what evidence would be necessary to substantiate the element or elements required to establish service connection for a bilateral flat feet that were found insufficient in the previous denial. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his right and left hip disabilities, if any, including whether it is at least as likely as not (i.e., 50 percent or greater probability) that these disabilities are related to his service in the military. To assist in making this important determination, have the designated examiner review the claims file for the Veteran's pertinent medical history, including a copy of this remand, the Veteran's available service medical records, and pertinent post-service medical records. The examiner should conduct all necessary diagnostic testing and evaluation. The requested determination should also take into consideration the Veteran's medical, occupational, and recreational history prior to, during, and since his military service. The medical basis of the examiner's opinion should be fully explained with reference to pertinent evidence in the record. If an opinion cannot be provided without resorting to speculation, please indicate this in the report and set forth the reasoning for this conclusion. 3. Following completion of the above, the RO should readjudicate the Veteran's claims, with application of all appropriate laws and regulations, and consideration of all additional information obtained since issuance of the most recent supplemental statement of the case, including any evidence obtained as a result of this remand. If the claim remains denied, the appellant and his representative should be furnished a SSOC and afforded a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board, as appropriate. The purpose of this remand is to further develop the record and afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs