Citation Nr: 1322495 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 08-14 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for status-post skin graft of the lower extremities (also referred to as burn scars on the legs). 2. Entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU). 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1964. This matter comes before the Board of Veterans' Appeal (Board) on appeal of a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Although the Veteran requested a hearing before the Board in a June 2010 statement, he subsequently submitted another statement to withdraw his hearing request. His hearing request has been withdrawn. 38 C.F.R. § 20.704 (2012). The Board notes that in an April 2008 statement of the case (SOC), the RO reopened the Veteran's service connection claim for burn scars on the legs and decided it on the merits. It appears that the RO also reopened the service connection claim for bilateral pes planus in an April 2010 SOC. However, regardless of whether the RO has determined that new and material evidence has been received sufficient to warrant reopening the Veteran's claims of entitlement to service connection for burns scars on the legs, and bilateral pes planus, the Board as the final fact finder within VA, must initially determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In May 2012, the Board remanded the issues listed on the title page of this decision for further development. The Board also referred the issues of whether new and material evidence has been received to reopen claims of entitlement to service connection for the following claimed disabilities: peripheral neuropathy of the bilateral legs (to include the bilateral knees, calves, and hips); low back pain; heart and lung disease; arthritis of multiple joints; and residuals of a left ankle fracture; as well as the issue of entitlement to a waiver of recovery of an overpayment of non service-connected pension benefits. These issues have not been adjudicated by the Agency of Original Jurisdiction. The Board does not have jurisdiction over them, and they are again REFERRED to the AOJ for appropriate action. The TDIU claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied the Veteran's service connection claims for burn scars on the legs and bilateral pes planus in a February 1986 rating decision, which was confirmed by a decision of the Board in February 1987. The Veteran did not appeal or request reconsideration of the Board decision. 2. In unappealed July 2004 and February 2006 rating decisions, the RO declined to reopen the Veteran's claims of entitlement to service connection for burn scars on the legs and bilateral pes planus. 3. The evidence since submitted, as concerning the burn scars and pes planus claims, is cumulative or redundant of the evidence of record at the time of that decision, does not relate to an unestablished fact necessary to substantiate the claims, or raise a reasonable possibility of substantiating these service connection claims. CONCLUSIONS OF LAW 1. The February 1987 Board Decision denying entitlement to service connection for burn scars on the legs and bilateral pes planus is final. 38 U.S.C. § 4004(b) (1986); 38 C.F.R. § 19.104 (1986); currently, 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1104 (2012). 2. The RO''s July 2004 and February 2006 rating decisions denying the Veteran's service connection claims for burns scars on the legs and bilateral pes planus are final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.1103 (2012). 3. New and material evidence has not been received since the last final decision to reopen the service connection claim for burn scars on the legs. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. New and material evidence has not been received since the last final decision to reopen the service connection claim for bilateral pes planus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) enhanced VA's duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. The VCAA was codified at 38 U.S.C.A. §§ 5100, 5103, 5103A, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). This notice must: (1) inform the Veteran of the information and evidence not of record that is necessary to substantiate his claim, (2) inform him of the information and evidence that VA will obtain, and (3) inform him of the information and evidence that he is expected to provide. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). When a Veteran files a claim of entitlement to service connection, there are five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and his military service, (4) rating for the disability, and (5) effective date for the disability. So VCAA notice should concern all elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence - evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, 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 evidence that must be presented. So, to this end, they must be: 1) notified of the evidence and information necessary to reopen the claim (i.e., instructed on what new and material evidence is); (2) apprised of the evidence and information necessary to substantiate each element of the underlying service-connection claim; and (3) notified of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits. See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006), wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ), which in this particular instance is the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, instead preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VCAA notice letters were initially sent to the Veteran in December 2006 and April 2007, prior to initially adjudicating his claims in November 2007. The April 2007 letter indicated that both the burn scar and pes planus claims were previously denied and that those prior decisions are now final. Although the letter did not indicate all of the prior final denials issued by the RO or Board, it did correctly indicate the need for new and material evidence to reopen the claims at issue. Overall, the April 2007 letter is compliant with the holding in Kent, supra, since it sufficiently explained the basis of the prior denials (i.e., no evidence that the Veteran's disability (ies) was worsened by military service beyond its normal progression). That notice letter also informed him of his and VA's respective responsibilities in obtaining supporting evidence and advised him as to how disability ratings and effective dates are assigned. Thereafter, the scar claim was readjudicated by way of an April 2008 SOC, and the pes planus claim by way of an April 2010 SOC. Then, both claims were readjudicated by way of a December 2012 SSOC. VA therefore has satisfied its duty to notify the Veteran concerning his claims. VA also satisfied its duty to assist the Veteran with these three claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO and AMC obtained his service treatment records (STRs) and VA outpatient treatment records. In response to a records request, the Social Security Administration in 2012 advised that it does not have any records pertinent to the Veteran. The Board therefore is satisfied that VA has provided all assistance required by the VCAA concerning these claims to reopen. 38 U.S.C.A. § 5103A (West 2002). New and Material Evidence Claims Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a)(2012). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, else the decision becomes final and binding if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302 (2012). If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. VA may reopen and review a claim if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final and binding denial of the claim is, in fact, new. As indicated by the applicable regulation, 38 C.F.R. § 3.156, and by case law, new evidence is that which was not of record at the time of the last final and binding disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record. This 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 also is material. Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final and binding denial on any basis to determine whether a claim must be reopened, so irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the record shows the RO originally considered and denied the Veteran's service connection claims for burn scars on both legs and pes planus in a February 1986 rating decision. The Veteran subsequently appealed that decision to the Board. In a February 1987 decision, the Board, in pertinent part, denied the Veteran's service connection claims for burn scars on the legs and pes planus. When this Board decision was decided, the evidence of record at that time included the Veteran's STRs as well as VA and private medical evidence. His pre-induction examination report dated in August 1961 shows that he had a 6-inch burn scar on his right lower leg, and a 2 inch x 1.5 inch burn scar on his left lower leg. In addition, a diagnosis of second degree pes planus was also shown on the pre-induction report. The evidence did not show any treatment for pes planus during his military service. An August 1963 STR shows that the Veteran complained of weakness and numbness in his right leg, but there was no apparent change in the burn scar on his right leg. The private medical evidence did not provide any information relevant to the claims. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b) (2012). A Veteran who served during a period of war is presumed to be in sound condition when he entered into military service except for conditions noted on entrance medical examination. 38 U.S.C. § 1111 (West 2002). Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service and was not aggravated during service, the presumption of soundness does not attach. Id. A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The Board, in February 1987, ultimately determined that the Veteran's burn scars on the legs and pes planus existed prior to service and did not increase in severity in service. Thereafter, in May 2004, the Veteran sought to reopen his service connection claims for burn scars on both legs and pes planus. Additional VA and private medical evidence was added to the claims file, as well as the Veteran's lay contentions. However, in a July 2004 rating decision, the RO declined to reopen the claims, finding that there was no evidence showing that his burn scars and/or pes planus were aggravated beyond their normal progression during service. In September 2005, the Veteran again sought to reopen these service connection claims. Similarly, there was no evidence showing that the Veteran's burn scars and/or pes planus were aggravated beyond their normal progression during service. Consequently, in a February 2006 rating decision, the RO continued to deny the Veteran's service connection claims for burn scars on both legs and pes planus, finding that new and material evidence had not been received to reopen the claims. In August and September 2006, the Veteran yet again sought to reopen these claims, and in a November 2007 rating decision, the RO again determined that new and material evidence had not been received to reopen the claims. The November 2007 rating decision is the subject of this appeal. Consequently, based on the procedural history in this case, the February 2006 rating decision is the last final and binding denial pertinent to these new and material evidence claims now under consideration. For purposes of the new-and-material analysis, the credibility of the evidence since submitted or otherwise obtained is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Evidence added to the claims file since that last final decision includes additional VA medical evidence and the Veteran's contentions. Notably, the newly added medical evidence is not material to either claim. Notably, the Veteran underwent a VA compensation examination in August 2007 and while the examiner noted that the Veteran's burn scars on his legs were likely aggravated by the exercise maneuvers in service, she ultimately determined the scars were not permanently aggravated, as the Veteran completed a two-year term and did not receive a medical discharge. This medical opinion, which is unfavorable to the claim, does not raise a reasonable possibility of substantiating the burn scar claim. Similarly, the medical evidence added to the claims file since the February 2006 rating decision does not raise a reasonable possibility of substantiating the pes planus claim. To the contrary, none of the newly received medical evidence, to include a September 2007 VA examination of the feet, reveals that the Veteran's pre-existing pes planus was permanently aggravated in service. The Board also considered the Veteran's statements he has provided since February 2006 in support of his claims. These statements primarily discuss how his bother him, and those statements are merely redundant and cumulative of his previously considered statements. His new statements do not rise to the level of new and material evidence because they do not relate to an unestablished fact necessary to substantiate these claims and do not raise a reasonable possibility of substantiating the claims. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). Therefore, in consideration of the additional evidence received since the final and binding February 2006 rating decision, the Board finds that the additional evidence is cumulative or redundant of evidence already considered in that earlier decision, does not relate to an unestablished fact necessary to substantiate the burn scars and pes planus claims, and does not raise a reasonable possibility of substantiating the claims. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Thus, under these circumstances, the Board concludes that the requirements to reopen the claim of entitlement to service connection for burn scars on the legs and bilateral pes planus have not been met, and the appeal of those claims must be denied. ORDER New and material evidence not having been received, the petition to reopen the claim for service connection for burn scars on the legs is denied. New and material evidence not having been received, the petition to reopen the claim for service connection for bilateral pes planus is denied. REMAND As noted, the Board, in its May 2012 remand, specifically requested that certain claims newly raised by the Veteran be adjudicated prior to the readjudication of the TDIU claim on appeal, as they were found to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that ... that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). These referred issues found to be intertwined were entitlement to service connection for peripheral neuropathy of the bilateral legs (to include the bilateral knees, calves, and hips); low back pain; heart and lung disease; arthritis of multiple joints; and a left ankle fracture. In a November 2012 memorandum, the AMC acknowledged the Veteran's newly raised claims, but also noted that it did not have jurisdiction of those claims and that the claims file should therefore be transferred to the RO. However, the claims file was never transferred to the RO. Instead, shortly thereafter in December 2012, the TDIU claim was re-adjudicated and the claims file was returned to the Board for further appellate consideration of the appealed claims. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not substantially complied with, the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. See Stegall v. West, supra. As such, the appeal must be remanded to allow for readjudication of the newly raised claims prior to re-adjudication of the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Transfer the claims file to the RO for the adjudication of the newly raised issues of whether new and material evidence was received to reopen the following service connection claims: peripheral neuropathy of the bilateral legs (to include the bilateral knees, calves, and hips); low back pain; heart and lung disease; arthritis of multiple joints; and a left ankle fracture. 2. Thereafter, review and readjudicate the Veteran's claim of entitlement to TDIU. If the TDIU claim remains denied, the Veteran and his authorized representative must be issued a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the TDIU claim on appeal. An appropriate period of time must be allowed for response. The TDIU claim should then be returned to the Board for further appellate review, if otherwise in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs