Citation Nr: 1300167 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-45 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for stasis dermatitis with ulceration of the left leg. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for stasis dermatitis of the right leg. 3. Entitlement to an evaluation in excess of 30 percent for the service-connected bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in January 2010. A statement of the case (SOC) was issued in September 2010. The Veteran perfected his appeal in November 2010. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claim of entitlement to an evaluation in excess of 30 percent for bilateral pes planus is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A January 1998 rating decision determined new and material evidence had not been submitted to reopen the previously denied claims of service connection for ulceration of the bilateral lower legs and varicose veins; the Veteran did not appeal the decision nor was new and material evidence received within one year of notice of the decision. 2. While some of the evidence received since the January 1998 rating decision was not previously submitted to agency decision makes, it is cumulative and redundant and, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claims of entitlement to service connection for stasis dermatitis of the right leg and stasis dermatitis with ulceration of the left leg. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the Veteran's claim for service connection for stasis dermatitis with ulceration of the left leg. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). 2. New and material evidence has not been received to reopen the Veteran's claim for service connection for stasis dermatitis of the right leg. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a January 2009 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Court's decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a 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 decision on a claim for VA benefits. The 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, the Court issued a decision in Kent v. Nicholson, 20 Vet. App. 1 (2006). In that decision, the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must notify the claimant of the evidence and information that is necessary to establish his entitlement to service connection. In that regard, the Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service-connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond 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. In this case, the RO provided VCAA notice to the Veteran in January 2009, which was prior to the February 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. In the present appeal, in the January 2009 letter, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the new and material claims for service connection, to include the reasons for the prior denials. This letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principia, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, post-service VA and private treatment records, reports of VA examination, and statements of the Veteran. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the issues and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). A VA examination is not necessary with respect to the claims for service connection as the claims are not being reopened. 38 C.F.R. § 3.159. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159(b), 20.1102 (2012); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the Veteran's claims file and Virtual VA record (which contains VA outpatient treatment records dated between September 2010 and June 2012 and considered by the RO in the June 2012 supplemental statement of the case). 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The Board must first address the issue of whether new and material evidence has been received to reopen the claims because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. Id; Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issues. The Veteran seeks to reopen his claims of service connection for stasis dermatitis with ulceration of the bilateral lower legs, last denied by the RO in January 1998. The record indicates that, in a January 1984 rating decision, the RO first denied a claim for left leg ulcers, frozen feet, and varicose veins. In denying the claim, the RO determined that the evidence failed to show complaints or treatment for leg ulceration, varicose veins, or frozen feet in service. The RO additionally noted that while the Veteran reported a history of frozen feet upon separation examination, the physical examination was negative for any residuals and none were shown in the current record. In September 1984, the RO reconsidered the claim and found no new basis to grant service connection. The Veteran did not appeal the decisions and they became final. 38 C.F.R. § 20.302(a). In December 1994, the RO denied a claim for ulceration of the right leg finding no evidence or complaints or treatment for the claimed condition in service. The RO additionally determined that no new and material evidence had been submitted to reopen the claim for service connection for left leg ulceration. The Veteran appealed the decision. Another rating decision was issued in August 1995 that determined no new and material evidence had been submitted to reopen the claims for ulceration of the bilateral legs. An SOC was issued in August 1995 and the Veteran perfected his appeals in November 1995. The Veteran subsequently withdrew his claims in February 1996 and the December 1994 and August 1995 rating decisions became final. In January 1998, the RO determined that no new and material evidence had been submitted to reopen the claims for ulceration of the bilateral lower legs or varicose veins. The RO determined that there was no probative medical evidence relating the Veteran's bilateral ulceration of the lower legs or varicose veins to his military service. The RO additionally found no record of injections or treatment for or diagnosis of varicose veins during the Veteran's military service. Subsequent to the January 1998 rating decision, an additional letter from Dr. MJP dated in November 1997 was added to the claims folder (the Board is cognizant this was dated prior to the rating decision and not considered). However, this letter was duplicative of his previous letter dated in December 1996 and thus not new and material. 38 C.F.R. § 3.156. The Veteran's representative also submitted a letter dated in April 1998 indicating the Veteran came to his home to speak with him concerning the recent denial of his claim (January 1998) with which he "disagreed." The representative indicated there was confusion as to how the Veteran's claims were handled, particularly the medical opinions reviewed by the RO, and he asked for advice on how to submit new evidence. The Board finds that this letter cannot be reasonably be construed as disagreement with the January 1998 rating decision as it does not identify which determination the Veteran disagreed with (there were two claims denied) and the letter did not express a desire for appellate review. 38 C.F.R. § 20.201. Since a timely notice of disagreement was not received and no new and material evidence was received within one year, the January 1998 rating decision became final. It is the last final denial on any basis. 38 C.F.R. § 20.302. Of record at the time of the January 1998 rating decision were the Veteran's service treatment records, which were negative for complaints, treatment, or diagnoses of stasis dermatitis, varicose veins, or ulceration of either leg. The Veteran reported a history of frozen feet four months prior on his February 1946 separation medical history; however, the corresponding physical examination was negative. Post-service, VA outpatient treatment records dated in 1983 show the Veteran was treated for stasis dermatitis and ulceration of the left leg. In a September 1983 statement, the Veteran indicated that his veins in his left leg began to swell in service when he was stationed in France. He indicated that his leg was injected with a needle and fluid was withdrawn. He claimed that since service he experienced a stinging sensation, as well as numbing, in his leg. His concluded that over the years his veins continued to swell and ulcers formed. A September 1983 letter from Dr. MC indicated the Veteran had been his patient since 1982 and treated him for chronic edema ulceration of the left leg, a problem that dated from his service in World War II. VA outpatient treatment records dated in 1986 show treatment for chronic varicose veins and stasis dermatitis. Upon VA examination in August 1986, the Veteran complained of left leg ulcers. The examination showed marked swelling of the left lower leg and discoloration and ulceration over the left medial malleolus. The Veteran wore compression stockings on both legs. VA outpatient treatment records dated between 1992 and 1994 reveal continued treatment for peripheral vascular disease and venous stasis ulceration of the left leg. Upon VA examination in December 1994 the Veteran was diagnosed with severe, venous stasis of the bilateral lower extremities. A nexus opinion was not provided. VA outpatient treatment records dated between 1995 and 1996 also show treatment for ulcers of the left calf, chronic varicose eczema, chronic venous insufficiency (CVI), and venous stasis of the left leg. In December 1996 and November 1997 letters, Dr. MJP, the Chief of Vascular Surgery, at the VA Medical Center (VAMC) indicated the Veteran reported a history of CVI, which began while on active duty in France. Dr. MJP further noted the Veteran reported a history of developing superficial varicose veins of this left leg and treated with injections in a military hospital. He also stated the Veteran indicated that shortly thereafter he began having chronic swelling and discoloration of his left leg, which progressed to severe CVI and recurrent ulceration of the left leg. In December 1996, Dr. MJP indicated it was impossible to be absolutely certain of the etiology of the Veteran's CVI and that it would be helpful to see the original record from France. Dr. MJP concluded it was possible, and perhaps likely the injection treatments given to the Veteran's varicose veins in service may have caused a deep venous injury or phlebitis. Given the fact that the Veteran gave no history of predisposing factors, Dr. MJP believed that the injection treatments were the likely cause of his CVI. In the November 1997 letter, Dr. MJP indicated that the CVI condition may have been related to lower extremity venous injections the Veteran received in service. Evidence submitted subsequent to the January 1998 rating decision includes Duplex scans of the bilateral legs dated in 2008 and 2009, which were negative for deep vein thrombosis. A January 2009 statement of the Veteran indicated that he was treated for swollen veins in the service and fluid was drawn out of his left leg to relieve pain. A January 2009 report of VA examination showed the Veteran wore support stockings and diabetic shoes. There were no physical findings regarding the claimed leg conditions, the examination was scheduled in connection with the claim for increased for bilateral pes planus. VA outpatient treatment records dated between 2008 and 2010 show continued treatment for ulceration of the left leg, CVI, and venous stasis. He was also treated for right leg cellulitis in 2009. These records further show treatment for diabetes and gout. VA outpatient treatment records dated between 2010 and 2012 contained within Virtual VA (VA's electronic database storage) show the Veteran continued to treat for peripheral vascular disease, CVI, and venous ulcers. He used an Unna boot and compression stockings to control symptoms. He also underwent Apligraf. In May 2012, bilateral leg edema was thought to be likely due to cardiac diastolic dysfunction. As noted previously, in January 1998, the RO determined that no new and material evidence had been submitted to reopen the claims for ulceration of the bilateral lower legs or varicose veins. The RO determined that there was no probative medical evidence relating the Veteran's bilateral ulceration of the lower legs or varicose veins to his military service. The RO additionally found no record of injections or treatment for or diagnosis of varicose veins during the Veteran's military service. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court, interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." The Veteran has not submitted new or material evidence which shows that he was treated for stasis dermatitis, ulcers, or varicose veins of either leg in service. The Veteran has not submitted new or material evidence showing that stasis dermatitis and ulcers of the bilateral legs was incurred in or aggravated during a period of active duty service. A current disability has not been in dispute. Essentially, the evidence submitted since the last final denial does nothing but reiterate the Veteran's prior contentions-that he was treated for varicose veins in service and received an injection and fluid withdrawal of the left leg in 1945 causing his current bilateral leg problems. As such, the evidence received since 1998 is duplicative or cumulative of that on file prior to the last final rating decision of that year. To the extent that the evidence of record received since the prior final decision could be deemed new, it does not, when considered by itself or with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claims. Specifically, none of the evidence shows that the Veteran was treated for a bilateral leg condition, notably varicose veins or injections, during service, or that his current CVI, stasis dermatitis, varicose veins, or ulcers were incurred in or aggravated during active service. 38 C.F.R. § 3.303. With respect to the Veteran's own statements, to the effect that he has stasis dermatitis and/or ulcers of his bilateral lower legs that was incurred during service, such evidence is cumulative and redundant of his earlier statements made prior to the January 1998 rating decision and accordingly is not new. See Reid, 2 Vet. App. at 315. Thus, on this record, new and material has not been received to reopen the previously denied claims of service connection for stasis dermatitis of the right leg and stasis dermatitis with ulceration of the left leg. See 38 C.F.R. § 3.156(a). ORDER New and material evidence has not been received to reopen the claim of service connection for stasis dermatitis with ulceration of the left leg. New and material evidence has not been received to reopen the claim of service connection for stasis dermatitis of the right leg. The appeal is denied as to these issues. REMAND Further development is necessary prior to appellate disposition of the Veteran's claim of entitlement to an evaluation in excess of 30 percent for bilateral pes planus. In the Veteran's November 2010 substantive appeal, the Veteran indicated that his bilateral pes planus had worsened in severity. Notably, the Veteran indicated his flat foot condition was not improved by his orthopedic shoes or appliances. He further contends that he has marked pronation and extreme tenderness on the plantar surface of his feet. The last VA examination of record, where no claims folder was present, is dated in January 2009, four years ago. VA outpatient treatment records show treatment for callosities of the feet in October 2009 and some absence of sensation upon monofilament testing of the feet in February 2010. In 2010, he was also fitted for Plastazole shoes. In December 2011, the Veteran continued to complain of foot pain. The Board cannot ascertain to what extent the disability has increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further, where there is evidence of a material change in the Veteran's condition or as in the instant case, when the Veteran asserts that the service-connected disability in question has undergone an increase in severity since the time of his last VA examination, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The last VA outpatient treatment records associated with the claims folder (contained within Virtual VA) are dated in June 2012. Thus, any outstanding VA medical records pertinent to the issue should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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) (2012). Expedited handling is requested.) 1. The RO should take all indicated action in order to obtain copies of any VA clinical records not on file pertaining to treatment of the claimed bilateral pes planus from the Northport VAMC from June 2012 to the present. 2. The RO should schedule the necessary VA examination to ascertain the current nature and severity of the Veteran's service connected bilateral pes planus. All indicated studies should be performed, if deemed necessary by the examiners for the evaluation of the Veteran under the pertinent rating criteria for the feet on appeal. It is imperative that the claims file be made available to the examiners for review. All examination findings should be reported to allow for application of VA rating criteria. 3. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the remaining issue in light of all evidence of record. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or 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. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs