Citation Nr: 1230303 Decision Date: 09/04/12 Archive Date: 09/10/12 DOCKET NO. 07-23 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left hip disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 1944 to July 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a decision of September 1978, the Board denied entitlement to service connection for, among other things, chronic disorders of the left hip and left leg. In a subsequent decision of August 1982, the Board continued its denial of service connection for chronic left hip and left leg disabilities. In a subsequent rating decision of August 2004, the RO denied entitlement to service connection for chronic disorders of the left hip and left leg. The Veteran voiced no disagreement with that determination, which has now become final. Since the time of the August 2004 rating decision, the Veteran has submitted additional evidence in an attempt to reopen his claims. The RO, at the time of the aforementioned rating decision in April 2006, continued the denial of service connection for chronic left hip and leg disabilities, finding that new and material evidence had not been submitted sufficient to reopen the Veteran's previously-denied claims. The current appeal ensued. In a decision of March 2009, the Board once again denied entitlement to service connection for chronic left hip and left leg disabilities, finding that new and material evidence had not been submitted sufficient to reopen the Veteran's previously-denied claims. The United States Court of Appeals for Veterans Claims (Court), in a January 2010 Order, vacated the Board's March 2009 decision, and, in so doing, remanded the Veteran's case to the Board for action consistent with a January 2010 Joint Motion for Remand. The Veteran's case was subsequently remanded by the Board in September 2010. The Board observes that, in a rating decision of March 2012, the RO granted service connection for posttraumatic stress disorder (also claimed as a depressive disorder). Accordingly, the issue of entitlement to service connection for an acquired psychiatric disorder, to include a posttraumatic stress disorder, is no longer before the Board. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2011). Finally, a review of the record, and, in particular, Virtual VA records, would appear to indicate that the Veteran has expressed his disagreement with the March 2012 rating decision granting service connection (and a 30 percent evaluation) for posttraumatic stress disorder. However, given the lack of other pertinent documents, the exact nature of the Veteran's disagreement is at this time unclear. Under the circumstances, the Board will confine its review solely to those issues listed on the title page of this decision. FINDINGS OF FACT 1. In a decision of August 2004, the RO denied entitlement to service connection for a left hip disability, essentially on the basis that there was no evidence of a chronic left hip disability in service. Appellant was notified and did not appeal. 2. Evidence received since the time of the RO's August 2004 decision denying entitlement to service connection for a chronic left hip disability is cumulative and/or redundant, and, by itself, or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the Veteran's claim. 3. In a decision of August 2004, the RO denied entitlement to service connection for a left leg disability, essentially on the basis that there was no evidence of a chronic left leg injury or disability in service. Appellant was notified and did not appeal. 4. Evidence received since the time of the RO's August 2004 decision denying entitlement to service connection for a chronic left leg disability is cumulative and/or redundant, and, by itself, or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the Veteran's claim. CONCLUSIONS OF LAW 1. The rating decision of August 2004 denying the Veteran's claim for service connection for a chronic left hip disability is final. 38 U.S.C.A. §§ 5103, 5103A, 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). 2. Evidence received since the time of the RO's August 2004 decision denying entitlement to service connection for a chronic left hip disability is new, but not material, and insufficient to reopen the Veteran's previously-denied claim. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2011). 3. The rating decision of August 2004 denying the Veteran's claim for service connection for a chronic left leg disability is final. 38 U.S.C.A. §§ 5103, 5103A, 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). 4. Evidence received since the time of the RO's August 2004 decision denying entitlement to service connection for a chronic left leg disability is new, but not material, and insufficient to reopen the Veteran's previously-denied claim. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in November 2005 and December 2010 of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, as warranted by law. As to the issues currently before the Board, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. New and Material Evidence In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as available service treatment records, and both VA and Virtual VA treatment records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case seeks service connection for chronic left hip and leg disabilities. In pertinent part, it is contended that the disabilities in question are the result of an incident in service, specifically, at Camp Wheeler, Virginia in November 1944, at which time the Veteran injured both his left hip and left leg. In that regard, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Notwithstanding the aforementioned, once entitlement to service connection for a given disorder has been denied by a decision of the RO, that determination, absent disagreement by the Veteran within a period of one year, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2011). Where a claim for entitlement to service connection has been previously denied, and that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence has been presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). Evidence is considered to be "new" if it was not previously submitted to agency decisionmakers. Evidence is "material" if, by itself, or when considered with the previous evidence of record, it 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 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). In addition, new evidence may be found to be material if it provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board of Veterans' Appeals to alter its decision." See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether new and material evidence has been received, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, at the time of the prior RO decision in August 2004, it was noted that previous Board decisions in September 1978 and August 1982 had denied entitlement to service connection for a chronic left hip disability. Further noted was that, in order to reopen the Veteran's previously-denied claim, it was necessary that he submit new and material evidence. New evidence was defined as evidence not previously submitted to agency decisionmakers, while material evidence was described as evidence that, by itself, or when considered with the previous evidence of record, related to an unestablished fact necessary to substantiate the claim. The Veteran was advised that new and material evidence could be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The RO informed the Veteran that new and material evidence would show that he suffered from a left hip condition which was chronic while he was in active military service. Further noted was that treatment records from 1971 to the time of the August 2004 rating decision failed to provide any evidence that the Veteran suffered a chronic injury to his left hip while in service. Given that there was no new and material evidence showing that the Veteran suffered from a left hip disability while on active duty, service connection for a chronic left hip disorder was denied. As regards the Veteran's claimed left leg disability, the Veteran was again informed that he had previously been denied service connection for such pathology in Board decisions of September 1978 and August 1982. Once again, the Veteran was advised that, in order to reopen his claim, new and material evidence was necessary. Noted at the time was that the Veteran's claim submitted in October 2004 had asked reconsideration of previous denials of service connection on the basis that statements by the Veteran's former service colleagues were not considered at the time of the prior decisions. However, a review of the evidence of record at the time of those decisions clearly indicated that the letters in question were specifically cited as part of the evidence provided in support of the Veteran's claim. Accordingly, such statements could not be considered "new." While recently submitted treatment records from the local VA medical center were, in fact, new, in that such records had not previously been reviewed, they were not material, inasmuch as such records did not demonstrate that there was a chronic left leg injury or disability while the Veteran was on active military duty. Based on the aforementioned, the RO concluded that no new and material evidence had been submitted showing that the Veteran suffered from a left leg disability while on active duty. Both of the aforementioned determinations regarding the Veteran's left hip and left leg were adequately supported by and consistent with the evidence then of record. Moreover, the August 2004 rating decision has now become final. Evidence submitted since the time of the aforementioned August 2004 rating decision, consisting, for the most part, of numerous VA treatment records, while in part "new" in the sense that it was not previously of record, is not "material." More specifically, such records reflect only ongoing treatment for numerous disabilities, with occasional vague complaints associated with the Veteran's left lower extremity. For example, leg swelling/edema was reported in 2006, at which time the Veteran was being seen for various complaints, to include hyperlipidemia and chronic heart disease. While these documents were not previously of record, and are therefore "new," they are not material to the issues at hand. Rather, they are cumulative of prior records which reflect that the Veteran was not shown to have a chronic left hip or leg disorder during service, or for many years thereafter. While the Veteran has continued to argue that his left hip and leg were injured in service, his statements are similar to ones previously given. Moreover, the Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Significantly, the matter of a nexus between service and a claimed disability involves a complex medical question requiring medical expertise. As the Veteran is not shown to have any medical training, his restated opinions regarding nexus are not competent evidence in the matter before the Board. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Under the circumstances, the Board is of the opinion that the evidence received since the time of the August 2004 rating decision does not constitute new and material evidence sufficient to reopen the Veteran's previously-denied claims. This is to say that, by itself, or when considered with the previous evidence of record, the newly-received evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claims. Accordingly, the appeal regarding the issues of service connection for chronic left hip and leg disabilities must be denied. ORDER New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for a chronic left hip disability is denied. New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for a chronic left leg disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs