Citation Nr: 1320246 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-46 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether there is new and material evidence has been received to reopen a claim for service connection for a right flatfoot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to July 1995. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO in Roanoke, Virginia is currently the Agency of Original Jurisdiction (AOJ). Although the RO ultimately determined that new and material evidence had been submitted to reopen the claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issue of service connection for a left flatfoot disability has been raised by the record but has not been adjudicated by the (AOJ. See August 2008 claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In a July 2008 rating decision, the AOJ continued a previous denial of service connection for a right ankle disability. The Veteran did not appeal the denial. However in August 2008, the Veteran submitted new evidence pertaining to the claim of service connection for a right ankle disability. The record does not indicate that the AOJ has readjudicated the claim. Therefore, it is referred to the AOJ for appropriate action in accordance with 38 C.F.R. § 3.156(b). FINDINGS OF FACT 1. A September 2004 rating decision denied a claim of entitlement to service connection for a right flatfoot disability; the Veteran did not appeal the rating decision. 2. The evidence added to the record subsequent to the September 2004 rating decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for a right flatfoot disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Court has held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the originating agency provided the appellant with all required notice by a letter mailed in October 2007, prior to the initial adjudication of the claim. The record also reflects that service treatment records and relevant post-service treatment records have been obtained. Neither the Veteran nor his representative has identified any additional, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board acknowledges that a VA examination was not provided but notes that VA is not required to provide a VA examination in response to a claim to reopen if new and material evidence has not been presented. See 38 C.F.R. § 3.159(c)(4). Accordingly, the Board will address the merits of the claim. Claim to Reopen 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 decisionmakers. 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 Court has 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's claim of entitlement to service connection for a right foot disability, diagnosed as a right flatfoot disability, was denied in a September 2004 rating decision. The Veteran was informed of his right to appeal the decision but did not do so. Service connection was previously denied because the evidence indicated that the right flatfoot disability preexisted service and was not aggravated by service. Evidence previously considered included the Veteran's service treatment records, which reflect a clinical finding of moderate pes planus at entry, a history of right ankle/foot injury during service, and an August 2003 VA examination report showing that the Veteran was found to have mild flat foot deformity. Evidence added to the record since the time of the September 2004 rating decision includes VA outpatient treatment records and private treatment records. The VA and private treatment records reflect treatment for pes planus. The private treatment records also reflect a determination that the Veteran's planovalgus alignment preexisted service. These records are cumulative in nature in that they continue to show that the Veteran has a right flatfoot disability and that the flatfoot disability preexisted service. The records are not material because they do not tend to establish a previously unestablished fact, namely that the right flatfoot disability did not preexist service or that it was aggravated by service. Thus, the records could not raise a reasonable possibility of substantiating the claim. In an August 2008 statement, a private physician stated that he was requested to provide an opinion concerning whether the Veteran's current conditions were service connected. He noted that the Veteran had "pre-existing" planovalgus alignment but also had right posterior tibial insertional tendonitis which the physician believed was related to the Veteran's active service. This statement is supportive of the Veteran's right ankle claim but does not tend to show that his right flatfoot deformity did not exist prior to service or that it was aggravated by service. Therefore, it is not material. The Veteran's statements are also not material. The Veteran has reported right foot pain and injury during service. He has also alleged that his right flatfoot disability is related to wearing boots during service. Initially, the Board notes that histories of right foot pain and injury during service were considered in the September 2004 rating decision. The currently reported histories of symptoms and injury in service are cumulative of the evidence previously of record. With respect to the history that the current flatfoot disability is related to wearing boots in service, although the Veteran is competent to report that that he had "foot problems" because of his boots during service, he is not competent to conclude that the existence of symptoms in service is due to aggravation rather than normal progression of the preexisting flatfoot disability or that the use of boots resulted in an aggravation of the preexisting flatfoot disability. Such a determination is a matter of medical complexity and requires specialized knowledge. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009). See also Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993) (flare-ups of a preexisting disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened). As such, his contentions are not probative evidence of aggravation which raises a reasonable possibility of substantiating the claim. In sum, there is still no competent evidence that the right flatfoot disability was aggravated by service. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the Board finds that new and material evidence has not been submitted, and reopening of the claim is not in order. ORDER New and material evidence having not been received, reopening of the claim of entitlement to service connection for a right flatfoot disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs