Citation Nr: 1310808 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-47 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to compensation under 38 U.S.C.A. § 1151 for a right finger disability due to the surgical removal of a giant cell tumor of the right third finger. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from January 1977 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. An October 2006 rating decision denied the appellant's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for a right finger disability, status post surgical removal of a giant cell tumor of the right third finger. 2. The appellant did not file a timely substantive appeal and the October 2006 rating decision became final. 3. Evidence received subsequent to the October 2006 rating decision is new, but is not material, and it does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2006 rating decision is final as to the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for a right finger disability, status post surgical removal of a giant cell tumor of the right third finger. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has not been received since the October 2006 rating decision to reopen the claim for a right finger disability, status post surgical removal of a giant cell tumor of the right third finger. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen claims, the appellant be given notice of the elements of the 1151 claim, the elements of new and material evidence, and the reasons for the prior denial. Prior to initial adjudication of the appellant's claim, a letter dated in November 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. The November 2008 letter also provided notice of the elements of new and material evidence and the reasons for the prior denial. The criteria of Kent are satisfied. See Kent, 20 Vet. App. at 9. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii). The appellant was not afforded an examination in association with his petition to reopen. As discussed below, the Board concludes that new and material evidence has not been received on this claim. Accordingly, there is no duty to provide an examination and no error exists. See id. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria 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 (2012). 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 (West 2002); 38 C.F.R. § 3.156 (2012). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "New" evidence is defined as 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 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). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase 'raises a reasonable possibility of substantiating the claim' as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. at 120. 1151 Claim Under 38 U.S.C.A. § 1151, compensation shall be awarded for a post-service "qualifying additional disability" in the same manner as it were service-connected. For VA purposes, a "qualifying additional disability" is a disability that was: (1) not the result of the Veteran's willful misconduct; (2) caused by hospital care, medical or surgical treatment, or an examination furnished the Veteran under any law administered by the Secretary of Veterans Affairs; and (3) the proximate cause of the disability or death was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. See also 38 C.F.R. § 3.361. III. Analysis In this case, the appellant has submitted an application to reopen a previously denied claim of entitlement to benefits under 38 U.S.C.A. § 1151 for a finger disability that he contends occurred due to negligence in a VA surgery to remove a giant cell tumor of the right third finger. The appellant's claim was previously denied by the RO in an October 2006 rating decision. Based on a medical opinion, the RO found that there was no evidence of malpractice, carelessness, negligence, lack of proper skill, error in judgment or other instance of fault of the staff furnishing the care. The RO found that although the residuals following his surgery were a result of the surgical repair, there was no evidence that these residuals were the result of negligence on the part of the VAMC Durham staff and would be considered a normal risk related to the removal of the giant cell tumor from his right third finger. Furthermore, the RO noted that the evidence did indicate that the possible risks of this surgery were fully explained to the appellant prior to his authorization of the tumor removal from the right third digit. The appellant submitted a notice of disagreement with the decision. In a July 2007 statement of the case, the RO again denied the appellant's claim. The appellant did not file a timely substantive appeal. In his September 2008 petition to reopen the claim, the appellant stated that he never received a copy of the statement of the case and neither did his accredited representative service officer. He stated that after several months of not hearing anything from VA, his service officer obtained a copy of the statement of the case from his claims file and forwarded a copy to him. A note on the statement reflects that the RO contacted the appellant's representative and was informed they had a copy of the statement of the case as did the district office. The RO also noted that there was no returned mail. There is a presumption of regularity that attends the administrative functions of the Government. The law presumes that the notice letters of the scheduled examinations were properly mailed and forwarded. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994), appeal dismissed, 53 F.3d 347 (Fed. Cir. 1995) (the law presumes the regularity of the administrative process "in the absence of clear evidence to the contrary"); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992); Ashley v. Derwinski, 2 Vet. App. 307, 308-9 (1992); Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992); YT v. Brown, 9 Vet. App. 195, 199 (1996) (the appellant's statement that she did not receive the November 1990 statement of the case is not the "clear evidence to the contrary" that is required to rebut the presumption of regularity that the notice was sent); Mason v. Brown, 8 Vet. App. 44, 55 (1995) ("appellant's statement of nonreceipt, standing alone, is not the type of 'clear evidence to the contrary' which is sufficient to rebut the presumption"). Here, the Board has considered the appellant's contention that he did not receive the statement of the case, however, there is no indication that the July 2007 statement of the case was returned as undeliverable. The statement of the case was sent to the same address the appellant has used throughout the appeal, including in his September 2008 claim. The July 2007 letter sent with the statement of the case reflects that a copy was sent to the appellant's representative. The appellant's representative stated that it had received a copy of the statement of the case. Thus, the Board finds that the appellant was informed of the July 2007 statement of the case and thus, he did not file a timely substantive appeal. Consequently, the October 2006 rating decision became final. 38 U.S.C.A. § 7105. The evidence of record at the time of the last final denial included the appellant's service treatment records, Duke Medical Center Rehabilitation Reports, a VA examination dated in January 2006, a pathology report from June 2001, and an August 2006 VA opinion. Evidence received since the October 2006 rating decision includes statements from the appellant and a December 2008 statement from A.B., M.D. The statements are new as they were not previously of record at the time of the last final denial. However, the Board finds that the evidence is not material. In the December 2008 statement, Dr. A.B. stated that the appellant was a patient who had a giant cell tumor on his right third finger that was surgically removed in approximately 2000. He subsequently developed severe contracture of the finger and as a result it has limited his scope of function. Dr. A.B. noted that the appellant is right-handed dominant. Dr. A.B. stated the chance of a successful release of the contracture is questionable. However, he would refer the appellant to a hand surgeon to be evaluated. Although the December 2008 statement from Dr. A.B. is new, it does not raise a reasonable possibility of substantiating the claim or relate to an unproven element of the claim and is thus, not material. The statement from Dr. A.B. indicates the appellant developed an additional finger disability following the surgical removal of the giant cell tumor. However, the fact that the appellant has an additional finger disability due to the surgery was already established at the time of the October 2006 rating decision. In the October 2006 rating decision, the RO specifically noted that the appellant had an additional finger disability due to the surgery to remove the giant cell finger. The RO found there was no evidence that these residuals were the result of negligence on the part o the VAMC Durham staff. The August 2006 VA opinion relied on by the RO reflects that the appellant did have a permanent partial impairment of his digit as a result of the operative procedure to remove the tumor. However, the VA physician stated that he did not believe that there had been a breach of standard of care, negligence, or medical malpractice involved. Thus, the December 2008 statement from Dr. A.B. does not relate to an unproven element of the 1151 claim, namely that the proximate cause of the finger disability was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. Consequently, the December 2008 statement is not new and material. In his September 2008 petition to reopen the claim, the appellant contended that VA was negligent with the surgery. He stated that he continued to have partial movement of his right finger. He also stated that the inability to have a range of motion of his third finger affected his other fingers in the right hand. In a February 2010 notice of disagreement, he stated that VA had ample evidence of record to reopen the claim. Although the appellant's statements are new, they are not material. As discussed above, the fact that the appellant has an additional disability due to the surgery was already of record at the time of the October 2006 rating decision. Thus, the appellant's statement that he only has partial movement of his right finger is not material. The appellant has asserted that VA was negligent with the surgery. However, a determination as to whether a surgery to remove a tumor was negligent is not the type of opinion that a lay witness is competent to provide. Thus, the appellant is not competent to report that VA was negligent in the surgery. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the appellant did not provide a rationale for his opinion that the surgery was negligent. He also previously asserted VA was negligent at the time of the October 2006 rating decision. Accordingly, the Board finds that the appellant's statements are not new and material. In sum, the Board concludes that new and material evidence has not been received sufficient to reopen the claim for compensation pursuant to 38 U.S.C.A. § 1151 for a right finger disability due to the surgical removal of a giant cell tumor of the right third finger. Therefore, the appellant's petition to reopen the claim is denied. ORDER New and material evidence not having been received the claim for entitlement to compensation under 38 U.S.C.A. § 1151 for a right finger disability due to the surgical removal of a giant cell tumor of the right third finger is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs