Citation Nr: 1311656 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 11-09 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether an October 1961 rating decision denying service connection for bilateral hand disability became final and if not whether service connection is warranted for bilateral hand disability. 2. Whether an October 1961 rating decision denying service connection for an abdominal disability became final and if not whether service connection is warranted for abdominal disability. ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from June 1957 to May 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. When the case was before the Board in November 2011 and October 2012, it was remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The issues of entitlement to service connection for a bilateral hand disability and abdominal disability are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The RO denied claims of entitlement to service connection for a bilateral hand disability and an abdominal disability in an October 1961 rating decision. 2. Evidence received less than one year after the October 1961 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims. CONCLUSION OF LAW New and material evidence was presented within one year of the issuance of the October 1961 rating decision; therefore, the rating decision did not become final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria 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) (West 2002). 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veteran's Claims (Court) recently 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis The Veteran filed claims to establish service connection for a bilateral hand disability and abdominal bleeding in August 1961. Since neither disorder was found upon VA examination in September 1961, the Veteran's claims were denied in an October 1961 rating decision. The Veteran did not submit a notice of disagreement; however, in December 1961 he submitted a letter from a private provider, Dr. J.R.S., which indicates that he had treated the Veteran for hematuria. Dr. J.R.S. also said the Veteran reported painful fingers with numbness. A certified copy of the letter was received in March 1962. Because the letter from Dr. J.R.S. shows the existence and treatment of the alleged disabilities, the Board finds that this document is both new and material as to the Veteran's claims. A review of the rebuilt claims file does not show that the RO readjudicated his claims after receipt of the letter from Dr. J.R.S., therefore, the October 1961 rating decision is the only unappealed rating decision on these claims and it did not become final. ORDER The Board having determined that the October 1961 rating decision denying service connection for a bilateral hand disability did not become final, the benefit sought on appeal is granted to this extent. The Board having determined that the October 1961 rating decision denying service connection for an abdominal disability did not become final, the benefit sought on appeal is granted to this extent. REMAND The Board finds that an additional remand is warranted. First, the Board notes that the Veteran was scheduled to testify before a Veterans Law Judge in a videoconference hearing at the RO in September 2011. The Veteran failed to report for the hearing. The record reveals that prior to the hearing, the Veteran submitted a written request to reschedule the hearing because he needed to find someone to accompany him due to his age and health, among other things. This request was received by the RO prior to the hearing date but apparently was not associated with the claims file until after the Board's November 2011 remand. In the Board's October 2012 remand, the Board ordered the RO/Appeals Management Center (AMC) to ascertain whether the Veteran still wished to appear and provide testimony before a member of the Board. A review of the claims file fails to show that the RO/AMC followed the Board's directive. Therefore, on remand, the RO/AMC must ask the Veteran if he would like to have his Board hearing rescheduled. Second, the Board notes that the Veteran has not provided medical evidence of continuation of his disorders. However, the Veteran has alleged that since his discharge from service he has continued to experience symptoms of frostbite on his fingers and passing blood in his urine. The Board finds that he is competent to report these symptoms as they are capable of lay observation. The Board also finds that he is a credible historian as to these issues. As such, and given the lapse of time since the prior VA examination in April 1962, the Board finds that a remand is warranted to schedule a VA examination to determine the nature and etiology of any hand and abdominal disorders present during the pendency of these claims. Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. Arrange for the Veteran to be scheduled for a VA examination by a physician with sufficient expertise to determine the nature and etiology of his bilateral hand and abdominal disorders. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be provided to and reviewed by the examiner. Based on the review of the Veteran's pertinent history and the examination results, the examiner should provide an opinion with respect to each abdominal disorder and each hand disorder present during the period of the claims as to whether the disorder originated during service or is otherwise etiologically related to the Veteran's active service. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. The rationale for each opinion expressed must also be provided. 2. The RO or the AMC should also undertake any other indicated development. 3. Then, the RO or the AMC should adjudicate the claims on a de novo basis. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and afforded the requisite opportunity to respond. 4. In addition, if any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should ascertain whether the Veteran desires to be afforded a Board hearing and if so the type of Board hearing. If he desires a videoconference hearing or Travel Board hearing, schedule the hearing in accordance with the docket number of the Veteran's appeal. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs