Citation Nr: 1307360 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 12-02 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from July 1946 to July 1948. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision of the Manchester, New Hampshire Regional Office (RO) of the Department of Veterans Affairs (VA). A Decision Review Officer (DRO) hearing was held at the RO in October 2008. A transcript of the hearing is of record. 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). FINDINGS OF FACT 1. Compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram was last denied in a May 2008 rating decision. It was held essentially that any residuals of the surgery were foreseeable results of the type of surgery done, without evidence of negligence, carelessness, or lack of proper skill. The Veteran did not perfect an appeal that decision or submit new and material evidence within one year of the rating decision. 2. The evidence added to the record since the May 2008 decision is cumulative or redundant of the evidence of record and does not cure a prior evidentiary defect. CONCLUSIONS OF LAW 1. The May 2008 rating decision denying compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence to reopen the claim for compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram has not been received. 38 U.S.C.A. § 5108 (West 2002 and Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in August 2010, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was provided information regarding the assignment of disability ratings and effective dates. He was also advised what constitutes new and material evidence to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The appeal was most recently readjudicated in the January 2013 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and private treatment records. This issue was remanded in July 2012 to obtain the October 2005 operative report for the surgery conducted at the Catholic Medical Center and to obtain other records from that hospitalization. The above documents have been associated with the record. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). NEW AND MATERIAL Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C.A. § 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran appeals the denial to reopen the claim for compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram. In a May 2008 rating decision, the Veteran was denied compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram. The RO essentially found that evidence showed there may be some relationship between the surgery and the residuals, but that it was a foreseeable result of the surgery. Further, there is a medical opinion, after review of all the record, that there was no evidence of negligence, carelessness, or lack of proper skill. The Veteran submitted a notice of disagreement to the decision in September 2008 and a statement of the case was issued in August 2009. He did not perfect an appeal to the decision. At the time of the last final denial, the record contained VA outpatient treatment records, records from Catholic Medical Center to include the October 2005 discharge summary, and post surgerical records from October 2008 to include records showing that the Veteran developed postoperative hematoma in the right leg. The record included the Veteran's statements that since the surgery in October 2005 he has had lumps in the groin, partial loss of feeling in the leg, foot aches and swelling. He related that he wore surgical stockings. According to the Veteran, when he had his femoral artery clean a mistake was made which resulted in the ruptured artery. The Board also notes that after the May 2008 rating decision but before the appeal period expired Dr. Z issued an opinion. Dr. Z related that postoperative hematoma and leg swelling are events that fall within the established range of potential vascular surgery complications. While unfortunate for the Veteran he stated, they number among the less morbid problems that may occur following arterial reconstruction. He opined that the events that happened to the Veteran do not in any way prove negligence, carelessness, lack of proper skill or error of judgment on the part of the surgeon. Since the last final denial, records from Catholic Medical Center have been associated with the record to include the report of operation and discharge summary. The Veteran has also rendered statements that though the negligence of his surgeon he has an additional disability of the leg. On careful review of the record, the Board has determined that new and material evidence to reopen the claim for compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram has not been received. The Veteran's claim for compensation was previously denied on the basis that the evidence failed to establish that VA medical or educational services were the proximate cause of additional disability. The evidence received since the last final denial consists of records from Catholic Medical Center. The above evidence, however, does not constitute new and material evidence as the discharge summary received from Catholic Medical Center was already of record. The Board also notes that while the report of operation from Catholic Medical Center was not of record previously, such is not considered new and material evidence. The report of operation, while it discusses the operation in detail, it does not establish that VA medical or educational services were the negligent or careless. While the operative report discusses the specifics of the surgery, it does not show that an additional disability resulted from the surgery. Furthermore, although the Veteran has re-submitted statements regarding his surgery and his current disability, such are cumulative as he continues to assert that he has an additional disability because of the negligence of his surgeon. The United States Court of Appeals for the Federal Circuit has held that, according to the plain language of the regulation, evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not previously been presented to the Board. See Anglin v. West, 203 F. 3d 1343, 1347 (Fed. Cir. 2000). Thus, even though the Veteran has submitted additional records discussing his surgery and statements regarding his current disability the evidence is essentially duplicative of evidence submitted in the past. Because the evidence received since the last final decision is cumulative of the evidence already of record, the Veteran has not submitted new and material evidence. Thus, the Board concludes that new and material evidence has not been presented to reopen the claim. Stated differently, compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram was denied in the past because the evidence failed to establish that VA medical or educational services were the proximate cause of additional disability as a result of negligence, carelessness, or improper care. No material facts have changed. ORDER New and material evidence has not been received, as such, the application to reopen the claim of compensation benefits under 38 U.S.C.A. § 1151 for status post right femoral endarterectomy, right iliofemoral bypass and right common femoral superficial femoral bypass with intraoperative arteriogram is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs