Citation Nr: 1318011 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 12-17 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for right arm fracture residuals, for substitution purposes. 2. Entitlement to service connection for left arm fracture residuals, for substitution purposes. 3. Whether new and material evidence has been received to reopen a claim for service connection for hypertension, for substitution purposes. 4. Whether new and material evidence has been received to reopen a claim for service connection for bladder neck contracture with distended bladder and transurethral resection of the prostate and bladder neck with possible carcinoma of the prostate and nephrectomy (bladder neck contracture), for substitution purposes. 5. Whether new and material evidence has been received to reopen a claim for service connection for malnutrition residuals, for substitution purposes. 6. Whether new and material evidence has been received to reopen a claim for an effective date earlier than July 1, 1998, for a separate 20 percent disability rating for residuals of a right brachial artery aneurysm, for substitution purposes. 7. Entitlement to a rating in excess of 20 percent for residuals of a right brachial artery aneurysm, for substitution purposes. 8. Entitlement to a rating in excess of 10 percent for service-connected right lower extremity cold injury residuals, for substitution purposes. 9. Entitlement to a rating in excess of 10 percent for service-connected left lower extremity cold injury residuals, for substitution purposes. 10. Entitlement to accrued benefits based on money owed the Veteran at the time of his death. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from November 1940 to September 1945. VA records also show that the Veteran was a prisoner-of-war (POW) in Germany from March 1943 to April 1945. The Veteran died in December 2011. The appellant has been substituted as a claimant, but also seeks accrued benefits. These matters come before the Board of Veterans' Appeals (Board) on appeal from various rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In January 2013, the Board remanded these matters for additional actions by the agency of original jurisdiction (AOJ). In a February 2013 letter, the RO recognized the appellant as the substitute claimant in the place of the Veteran. Accordingly, the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. 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 issue of entitlement to accrued benefits based on money owed the Veteran at the time of his death is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran was a POW of the German government from March 1943 to April 1945. 2. Resolving reasonable doubt in favor of the appellant, the Veteran sustained a right arm fracture in service. 3. There is no evidence that the Veteran had a left arm fracture at any time in service, or that he was diagnosed with residual disability from a left arm fracture at any time up until his death. 4. As new and material evidence has been received, the claim for service connection for hypertension is reopened. 5. Resolving reasonable doubt in favor of the appellant, the Veteran's diagnosed hypertension was related to service. 6. The January 2004 rating decision that reopened the claim for service connection for bladder impairment, but denied the claim, is final. 7. Additional evidence presented since the January 2004 rating decision, is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 8. The March 1994 Board decision that denied service connection for malnutrition residuals is final. 9. Additional evidence presented since the March 1994 Board decision, is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 10. The July 2008 rating decision that declined to reopen the claim for entitlement to an effective date earlier than July 1, 1998, for a separate 20 percent disability rating for residuals of a right brachial artery aneurysm is final. 11. Additional evidence presented since the July 2008 rating decision, is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 12. While the Veteran's family called and cancelled the Veteran's scheduled VA examinations that were necessary to address his increased rating claims for residuals of right brachial artery aneurysm and right and left lower extremity cold injury residuals, good cause for failure to report or to request rescheduling of the examinations was not provided. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the appellant, the criteria for service connection for right arm fracture residuals, for substitution purposes, are met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for left arm fracture residuals, for substitution purposes, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Evidence received since the April 1983 rating decision is new and material and reopening of the claim for service connection for hypertension is warranted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303(2012). 5. The January 2004 rating decision that reopened the claim for service connection for bladder impairment, but denied the claim, is final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. Additional evidence presented since the January 2004 rating decision, is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 7. The March 1994 Board decision that denied service connection for malnutrition residuals is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 8. Additional evidence presented since the March 1994 Board decision, is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 9. The July 2008 rating decision that declined to reopen the claim for entitlement to an effective date earlier than July 1, 1998, for a separate 20 percent disability rating for residuals of a right brachial artery aneurysm is final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 10. As new and material evidence has not been received, the criteria for reopening the claim for an effective date earlier than July 1, 1998, for a separate 20 percent disability rating for residuals of a right brachial artery aneurysm have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 11. The claim for a rating in excess of 20 percent for residuals of a right brachial artery aneurysm, for substitution and accrued benefits purposes, is denied as a matter of law. 38 C.F.R. § 3.655 (2012). 12. The claim for a rating in excess of 10 percent for service-connected right lower extremity cold injury residuals, for substitution and accrued benefits purposes, is denied as a matter of law. 38 C.F.R. § 3.655 (2012). 13. The claim for a rating in excess of 10 percent for service-connected left lower extremity cold injury residuals, for substitution and accrued benefits purposes, is denied as a matter of law. 38 C.F.R. § 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran and the appellant were notified in letters dated in April 2009, June 2009, July 2009, October 2009, December 2009, February 2012, and in February 2013. The Board also finds that notice for new and material evidence claims was provided. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent October 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain chronic diseases, including arthritis, malignant tumors, and cardiovascular-renal disease, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. 3.307, 3.309(a) (2012). Where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2012). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim for chronic disease. 38 C.F.R. §§ 3.303(b), 3.309(a) (2012). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. In the case of any veteran who engaged in combat with the enemy in active service, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 2002). The ordinary meaning of the phrase engaged in combat with the enemy requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. 38 U.S.C.A. § 1154(b) (West 2002); VAOGCPREC 12-99 (1999), 65 Fed. Reg. 6,256 (2000). If a Veteran is a former POW and was interned or detained for not less than 30 days, certain diseases shall be service-connected if manifested to a degree of 10 percent or more at any time after discharge or release from active service, even though there is no record of the disease during service, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2011) are also satisfied. The list of presumptive diseases includes hypertension. 38 U.S.C.A. §§ 1110, 1112(b), 1113 (West 2002); 38 C.F.R. §§ 3.1(y), 3.307(a)(5), 3.309(c) (2012). Where a former POW claims disability compensation, omission of history or findings from clinical records made upon repatriation is not determinative of service connection, particularly if evidence of comrades in support of the incurrence of that disability during confinement is available. Special attention will be given to any disability first reported after discharge, especially if poorly defined and not obviously of intercurrent origin. The circumstances attendant upon the individual decedent's confinement, and the duration thereof, will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the POW experience. 38 C.F.R. § 3.304(e) (2012). Notwithstanding the presumption, service connection for a disability claimed as due to being a POW may be established by showing that a disorder resulting in disability or death was in fact causally linked to being a POW. Brock v. Brown, 10 Vet. App. 155 (1997); Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994); 38 U.S.C.A. §§ 1113(b), 1116 (West 2002); 38 C.F.R. § 3.303 (2012). In this case, the evidence of record clearly shows that the Veteran was a combat Veteran and that the provisions of 38 U.S.C.A. § 1154(b) apply. Right arm fracture residuals A November 1948 VA examination noted that the Veteran had a gunshot wound to his right arm from 1943; the entrance of the bullet wound was in the lateral aspect of the mid-arm and exit wound in the medial aspect. There was residual of surgery to remove aneurism of brachial artery secondary to the gunshot wound. There was no mention of a fracture. An October 1967 X-ray of the Veteran's right arm showed some thickening along the lateral aspect of the mid-portion of the shaft of his humerus that were probably secondary to an old injury. No metallic foreign bodies were seen in the soft tissues. An October 1967 VA examination report notes that the Veteran's diagnosis was residuals of gunshot wound, thin proximal 2/3 millimeter of the right arm with vascular damage and traumatic periostitis of the humerus. A May 1971 X-ray shows that the Veteran had changes along the mid-shaft of the humerus, consistent with an old well healed trauma. There was no evidence of osteomyelitis or other significant abnormality and no foreign bodies were seen. In a February 2009 letter, an archivist from the International Committee of the Red Cross (ICRC) in Geneva, Switzerland indicated that they were providing the Veteran with a certificate with information pertaining to the Veteran as translated from Italian and German documents during the Veteran's period of captivity. It was determined that traces of matters of a medical nature contained within an Italian list mentions "F. Trasfossa braccio d. con vasto ematoma," which the ICRC stated means fracture on the right arm with a large hematoma. The Board finds that the February 2009 translation of foreign documents by the ICRC is competent and probative evidence to support a finding that the Veteran sustained a right arm fracture at the time he was a POW. The Board finds that it is at least as likely as not that the Veteran's right arm fracture residuals was incurred in active service. Therefore, resolving reasonable doubt in favor of the claimant, the Board finds that service connection for right arm fracture residuals is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left arm fracture residuals The Veteran's service medical records are negative for complaints, findings, symptoms, or diagnosis of any left arm fracture. Medical treatment records show that the Veteran sustained various injuries to his right arm, but they are absolutely silent for findings pertaining to the left arm, to include any potential fracture. In addition, there is no medical evidence that the Veteran had a left arm disability that was a residual of a left arm fracture post-service. In this case, the Board finds that the medical evidence fails to establish that the Veteran was ever diagnosed with residuals of a left arm fracture, in service or after service. Furthermore, the appellant has not presented, identified, or even alluded to the existence of any medical evidence of a diagnosed left arm disability, and a relationship, if any, to service. Thus, notwithstanding the appellant's contentions that the Veteran suffered a left arm fracture in service, without competent evidence of a diagnosed or identifiable disability, service connection cannot be granted. Congress has specifically limited entitlement to service connection for disease or injury incurred or aggravated in service to cases where such incidents have resulted in disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Therefore, where, as here, competent evidence does not establish the presence of the disability for which service connection is sought, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board finds that the claim for service connection for left arm fracture residuals must be denied because the first essential criterion for a grant of service connection, evidence of a current disability upon which to predicate a grant of service connection, has not been met. The preponderance of the evidence is against the claim and this claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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) (2012). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. All evidence submitted by or on behalf of a claimant since the last final denial on any basis is reviewed to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether the new evidence is material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board is aware that the regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156(a) (2012); Shade v. Shinseki, 24 Vet. App. 110 (2010). Hypertension When the Veteran submitted his claim for service connection for hypertension in April 1983, hypertensive vascular disease was not listed as a disease for which entitlement to service connection was presumed for former POWs. 38 C.F.R. § 3.309 (2004). Effective October 7, 2004, the former regulatory provisions were amended to include service connection on a presumptive basis for former POWs who develop atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia). 38 C.F.R. § 3.309(c) (effective October 7, 2004); 69 Fed. Reg. 60 ,083-60090 (Oct. 7, 2004). Based upon regulations in effect prior to October 7, 2004, the RO denied service connection for hypertension in an April 1983 rating decision, since hypertension was not a POW-related disability and there was no evidence that hypertension had manifested itself in service or for many years after service. However, since hypertension is now found to be a POW presumptive disability, the evidence relating to hypertension is now material. Therefore, the appellant's claim of service connection for hypertension is reopened. Status as a former POW allows for service connection to be presumed for certain diseases. 38 U.S.C.A. § 1112(b) (West 2002); 38 C.F.R. § 3.309(c) (2012). If a veteran is a former POW, hypertension shall be service connected if manifest to a degree of disability of 10 percent or more at any time after discharge or release from active service even though there is no record of hypertension during service. 38 C.F.R. § 3.309(c) (2012). Hypertension is defined as diastolic blood pressure that is predominantly 90 or greater, or systolic blood pressure that is predominantly 160 or greater with a diastolic blood pressure of less than 90. To support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 Note (1) (2012). A December 1946 VA examination report shows that the Veteran's blood pressure readings were 100/68 and 130/70. In 1954, the Veteran was found to have a blood pressure reading of 160/100. In 1971, VA examination showed blood pressure of 140/80. A September 1983 VA medical record noted that the Veteran has had hypertension for which he was under treatment. Several VA and private medical records note that the Veteran was on several hypertension medications for treatment. However, since there is no medical evidence of record establishing that the Veteran had hypertension that manifested itself to a degree of disability of 10 percent or more at any time prior to the Veteran's death, service connection cannot be granted on a presumptive basis. The Board will also consider the appellant's claim on a direct basis to afford her all possible avenues of entitlement. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (when a claimant is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis). That is to say, the POW presumption does not preclude a claimant from establishing direct service connection with proof of actual direct causation. In this case, in a November 2006 letter, W. Berlin, M.D. stated that the Veteran was in combat in World War II, was wounded, and was a POW. Dr. Berlin stated that the injuries sustained during the Veteran's war service to his abdomen and right arm had been chronic since the war and continued to plague him. Dr. Berlin further stated that the Veteran had hypertension and that the hypertension was a result of his war injuries. Having considered the above private medical opinion, which is consistent with the evidence of record, the Board finds that opinion links the Veteran's hypertension to service, specifically to injuries sustained during World War II when he was wounded and was a POW. There is no medical opinion to the contrary. Further, VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Therefore, resolving all reasonable doubt in favor of the appellant, the Board concludes that the criteria for service connection for hypertension have been met, and the claim is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Malnutrition A March 1972 rating decision denied service connection for residuals of malnutrition on the basis that a disability due to malnutrition was not shown by the evidence of record. Of record at the time of the decision were the Veteran's service medical records, a December 1946 VA examination report, and several VA hospital records. All of the records were negative for residuals of malnutrition. In a February 1983 decision, the Board determined that the Veteran was currently well nourished and did not display any manifestations of malnutrition at any time since separation from service. In a May 1984 decision, the Board denied a claim for service connection for malnutrition. At that time private and VA medical records were reviewed and were negative for findings of residuals of malnutrition. A September 1983 VA examination revealed a diagnosis of malnutrition by history only, with no indication of current residuals. In a March 1994 decision, the Board determined that while there was evidence that the Veteran had suffered from malnutrition while a POW, there was no diagnosis in the record of any residuals of malnutrition. That decision was affirmed by the U.S. Court of Appeals for Veterans Claims in a January 1996 memorandum decision. All Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis, unless the Chairman orders reconsideration, or one of the other exceptions to finality apply. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). Therefore, the March 1994 Board decision is final based on the evidence then of record. In April 2008, the Veteran sought to reopen his claim for service connection for residuals of malnutrition. An August 2009 rating decision declined to reopen the claim for service connection for residuals of malnutrition. The RO determined that while the Veteran had submitted some evidence that was new, it was not material. In this case, additional VA medical records and letters and other documents related to the Veteran's POW experience was submitted. In addition, the Veteran's terminal medical records are new. While new, they are not material as they do not suggest that the Veteran was diagnosed with any chronic disability of residuals of malnutrition, one of the elements missing at the time of the Board's 1994 decision. Other evidence added to the record consisted of many cumulative statements by the Veteran and duplicative medical evidence previously of record. The duplicative evidence submitted and cumulative contentions are found to not be new evidence and thus to not be new and material evidence. In this case, none of the new evidence contains competent evidence that the Veteran had a chronic disability of residuals of malnutrition that was incurred in or aggravated by the Veteran's service. Therefore, the Board finds that evidence is not material because it does not create a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been submitted and the claim for residuals of malnutrition is not be reopened. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Genitourinary Disability The service medical records were negative for the presence of any genitourinary disorder or prostate cancer. VA examinations in 1946 and in 1948 were also negative. VA medical records from 1953 and 1954 revealed narrowing of the right ureter. VA medical records showed that the Veteran was hospitalized in August 1971 and the diagnoses included bladder neck contracture with distended bladder and adenocarcinoma of the prostate. A laparotomy revealed that a mass was a distended bladder. Transurethral resection of the prostate and bladder neck was performed. He was again hospitalized in September 1971 and in March 1972 pertaining to a biopsy of the prostate and for contracture of the bladder neck. A March 1972 rating decision denied service connection for bladder neck contracture on the basis that the disability was not shown in service or to be the result of VA hospitalization. The rating decision also denied service connection for residuals of malnutrition on the basis that the disability was not shown in service medical records or that the Veteran was suffering from any residual disability. In an April 1973 decision, the Board denied a claim for service connection for adenocarcinoma of the prostate. In a February 1983 decision, the Board denied service connection for post operative residuals of bladder neck contracture and post operative residuals of adenocarcinoma of the prostate. The Board concluded that the evidence received was duplicative of evidence already of record or cumulative in nature, and was not material. In a May 1984 decision, the Board denied claims for service connection for a bladder condition. At that time the service medical records were again reviewed and were negative for findings of malnutrition and a bladder condition. A bladder disorder was noted as first shown many years after service and are not shown to be related to service. A September 1983 VA examination report was considered, but did not provide evidence that a bladder condition existed in service, and any bladder abnormality manifested many years after service and was not shown to be related to service. There was no presumption for a bladder disorder based on a Veteran's POW status. A March 1985 Presbyterian Hospital record shows that the Veteran underwent bladder neck resection and Y-V plasty. In April 2003, the Veteran submitted a request to reopen a claim for service connection for bladder impairment. In a January 2004 rating decision, the RO decided that the claim for service connection for bladder impairment was reopened, but denied the claim on the basis that the evidence failed to show that condition was incurred or aggravated by service. In January 2009, the Veteran requested that his claim for service connection for bladder neck contracture be reopened. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board must consider that question because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no new and material evidence has been offered, that is where the analysis must end, and what the RO may have determined is irrelevant. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In an August 2009 rating decision, the RO declined to reopen the claim for service connection for bladder neck contracture. The RO determined that the additional evidence received did not relate to whether the Veteran's bladder neck contracture was related to service. Additional evidence added to the record includes additional VA medical records and the Veteran's terminal medical records as well as additional lay statements from the Veteran and the appellant. Also, evidence added to the record consisted of many statements from the Veteran and the appellant that are cumulative and duplicative medical evidence previously of record. Regardless, the fact remains that the new evidence does not show that the Veteran had a bladder neck contracture disability in service, continuity of symptoms after service of any chronic disability, or any medical evidence that the Veteran has a bladder disability related to service. Therefore, the Board finds that new and material evidence has not been submitted and the claim for service connection for bladder neck contracture has not been reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). In addition, the above claims addressing residuals of malnutrition and bladder neck contracture, each turns on a complex medical matter. As the Veteran and the appellant are laypersons without the appropriate medical training or expertise, they are not competent, on the basis of assertions alone, to provide probative or persuasive evidence on a medical matter of such complexity as to the diagnosis or etiology of these conditions. The Board is aware that a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case the Veteran and appellant are not competent to provide evidence as to more complex medical questions, such as to the diagnosis of residual disability of malnutrition or the etiology of bladder neck contracture. Effective date earlier than July 1, 1998, for the grant of a separate 20 percent disability rating for residuals of a right brachial artery aneurysm In a February 1998 decision, the Board determined that the evidence of record did not support a rating in excess of 30 percent for the combined residuals of the Veteran's gunshot wound to the right arm. On July 1, 1998, the RO received a letter from the Veteran in which he stated "where are my benefits for shrapnel wounds from 1943?" On July 31, 1998, the RO received duplicate copies of medical records showing a diagnosis of aneurysm, right arm. In a February 1999 rating decision, the RO expanded the Veteran's service-connected gunshot wound of the right arm to include residuals of an aneurysm of the right arm, and continued the 30 percent rating, effective September 6, 1967. The RO concluded that a separate rating from that which was granted for muscle impairment of the right arm wound not be proper because that would constitute concurrent ratings for the same impairment. 38 C.F.R. § 4.14 (2012). In August 1999, the Board remanded the matter for a compensable rating for residuals of a right brachial artery aneurysm, separate from the disabling rating for service-connected gunshot wounds of the right arm, for additional development. In a September 1999 rating decision, based on a longitudinal review of the claims file, the RO granted a separate 20 percent disability rating for a brachial aneurysm of the right arm, effective February 16, 1999. In a January 2002 rating decision, the RO granted an earlier effective date for the grant of a separate 20 percent disability rating for brachial aneurysm of the right arm, effective July 1, 1998, finding that was the date of an inferred claim for an increased rating. The RO liberally construed the Veteran's reference to his gunshot wound disability in a July 1, 1998, correspondence as an actual claim. In a November 2002 decision, the Board determined that the claim for increase had been filed by the Veteran on July 1, 1998, and that evidence on file failed to demonstrate that a separate, 20 percent rating was warranted at any time during the one-year period prior to July 1, 1998. In April 2003, the Veteran submitted a request to reopen the claim for an earlier effective date. In a January 2004 rating decision, the RO confirmed and continued the previous denial of an earlier effective date. In a May 2006 decision, the Board determined that effective from January 12, 1998, 38 C.F.R. § 4.104, the regulation under which cardiovascular disorders were rated, was modified. The Board noted that it prior to January 12, 1998, the criteria under 38 C.F.R. § 4.104, Diagnostic Code 7113 did not allow for a 20 percent rating for traumatic arteriovenous aneurysm. As of January 12, 1998, a change in the rating criteria allowed for a 20 percent rating for an arteriovenous fistula of the upper extremity with edema or stasis dermatitis. The Board determined that evidence submitted since the prior decision did not show that the Veteran had a pending claim for increase filed one year earlier than the one received by VA on July 1, 1998, or edema or stasis dermatitis of the right upper extremity in association with arteriovenous injury. The Board held that since new and material evidence had not been submitted, the claim was not reopened. The RO received a statement from the Veteran on April 28, 2008, in which he asserted that his claim should have been effective from 1945. The RO accepted that as a request to reopen the claim for an earlier effective date. In a July 2008 rating decision, the RO denied the claim for an earlier effective date for the grant of service connection and assignment of a 20 percent disability rating for brachial aneurysm right arm. The Veteran did not initiate an appeal and the RO's decision consequently became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). As a result, entitlement to an earlier effective date for the grant of service connection and assignment of a 20 percent disability rating for brachial aneurysm right arm may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); In an August 2009 letter, the Veteran stated that his aneurysm benefits should begin from 1945, not 1998. The RO accepted that as a petition to reopen the claim for an earlier effective date. In a January 2010 rating decision, the RO determined that the claim for an earlier effective date was not reopened. It was set forth that the Veteran did not submit a claim for service connection for brachial aneurysm right arm within one year of service discharge to warrant an earlier effective date to 1945. In addition, there was no evidence that the Veteran submitted a claim for service connection for brachial aneurysm of the right arm in 1945. Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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) (2012). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the last final decision in July 2008, the Veteran and the appellant have submitted a substantial amount of duplicative evidence and cumulative contentions. While the Veteran's terminal medical records were associated with the claims file after the last final rating decision, and are considered new, they are not material as to the issue of an effective date earlier than July 1, 1998, for the separate grant of service connection and assignment of a 20 percent disability rating for brachial aneurysm right arm. The Board notes that the assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002). The implementing regulation clarifies that to mean that the effective date of a rating and an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2012). An exception to that general rule applies under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that circumstance, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998). The term increase means an increase to a higher disability level. Hazan v. Gober, 10 Vet. App. 511 (1997). In general, date of receipt means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). A claim means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). Moreover, the grant of a separate 20 percent rating was made on the basis of liberalizing legislation, and as such cannot be made effective prior to the effective date of that legislation. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. 38 U.S.C.A. § 7104 (West 2002). Furthermore, the Veteran and now the appellant, have failed to submit any new and material evidence indicating that prior to the July 1, 1998 claim, that there was an outstanding claim for the requested benefits or that it was factually ascertainable that an increase in disability had occurred during the year prior to submission of the claim for an increase. Without that evidence, the claim for an effective date earlier than July 1, 1998, for the grant of a separate 20 percent disability rating for residuals of a right brachial artery aneurysm cannot be granted. Therefore, the Board finds that new and material evidence has not been submitted and the earlier effective date claim has not been reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). Increased ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In January 2009, the Veteran submitted documentation, which, after speaking with the Veteran by telephone, the RO accepted as a claim for an increased rating for service-connected right and left lower extremity cold injury residuals, each rated 10 percent, and for brachial aneurysm of the right arm, rated 20 percent. There are no VA or non-VA medical records showing treatment for the Veteran's service-connected lower extremity cold injury residuals or brachial aneurysm of the right arm. The Veteran was scheduled for a VA examination in May 2009 to address the severity of these service-connected disabilities. However, a memorandum in the record shows that a family member called and cancelled the scheduled examination. They stated that the Veteran was unable to come and would resubmit at a later date. While additional correspondence from the Veteran was received during the appeal, there was never a request to reschedule the VA examinations so that a physician could address the severity of the service-connected disabilities. When a claimant fails to report for an examination, without good cause, that was scheduled in conjunction with a claim for an increased rating, the claim must be denied. So on that basis alone, these claims must be denied, according to express VA regulation. 38 C.F.R. § 3.655(b) (2012). Again, the requirement for an additional examination was to ascertain if a higher ratings were warranted. In the absence of the evidence that was sought at that examination, there are no clinical findings to support an increased rating for right and left lower extremity cold injury residuals or for brachial aneurysm of the right arm. The Board notes that a claimant, in pursuing his appeal, has some responsibility to cooperate in the development of all facts pertinent to his claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). However, the record shows that the Veteran failed to report for a scheduled VA examination, and in fact, cancelled the scheduled examinations and did not to reschedule. Thus, there is no evidence showing good cause for his failure to report. The regulation is quite clear. Failure to report for a scheduled VA examination, without an adequate explanation, requires a denial. 38 C.F.R. § 3.655 (2012). In any event, the Board notes that the record does not contain evidence that could be applied to ascertain whether the Veteran qualified for an increased disability rating. Therefore, in the absence of medical evidence, the Board cannot find that the evidence shows that it is at least as likely as not that any higher ratings were warranted. Accordingly, the claims for ratings in excess of 10 percent for service-connected right lower and for left lower extremity cold injury residuals, for substitution and accrued benefits purposes, and for a rating in excess 20 percent for residuals of a right brachial artery aneurysm, for substitution and accrued benefits purposes must, each, be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for right arm fracture residuals, for substitution purposes, is granted. Service connection for left arm fracture residuals, for substitution purposes, is denied. New and material evidence has been received and therefore the claim for service connection for hypertension is reopened. Entitlement to service connection for hypertension is granted. As new and material evidence has not been received, the request to reopen a claim for service connection for bladder neck contracture with distended bladder and transurethral resection of the prostate and bladder neck with possible carcinoma of the prostate and nephrectomy, for substitution purposes, is denied. As new and material evidence has not been received, the request to reopen a claim for service connection for malnutrition residuals, for substitution purposes, is denied. As new and material evidence has not been received, the request to reopen a claim for an effective date earlier than July 1, 1998, for a separate 20 percent disability rating for residuals of a right brachial artery aneurysm, for substitution purposes, is denied. Entitlement to a rating in excess of 20 percent for residuals of a right brachial artery aneurysm, for substitution purposes, is denied. Entitlement to a rating in excess of 10 percent for service-connected right lower extremity cold injury residuals, for substitution purposes, is denied. Entitlement to a rating in excess of 10 percent for service-connected left lower extremity cold injury residuals, for substitution purposes, is denied. REMAND Because the Board's decision to grant service connection for right arm fracture residuals and for hypertension may have an impact upon consideration of the issue of entitlement to accrued benefits based on money owed the Veteran at the time of his death the Board finds that those issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, consideration of the claim for entitlement to accrued benefits based on money owed the Veteran at the time of his death must be deferred until the RO assigns ratings and effective dates for the grant of service connection for right arm fracture residuals and hypertension. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this matter is REMANDED for the following action: After assigning initial disability ratings to right arm fracture residuals and hypertension, readjudicate the claim of entitlement to accrued benefits based on money owed the Veteran at the time of his death. If any decision remains adverse to the appellant, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs