Citation Nr: 1329393 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-24 072 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for a right foot disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from July 1952 to July 1956. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2009 decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Please note 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). FINDINGS OF FACT 1. In a November 1989 decision, the RO denied the Veteran's claim of entitlement to service connection for a right foot disability; and the Veteran neither perfected an appeal nor submitted new and material evidence within the one year appeal period. 2. Evidence obtained since the November 1989 rating decision is new, as it shows a current right foot disability but is not material as it does not relate to an unestablished fact necessary to substantiate the claim. 3. No evidence that has been submitted since the November 1989 rating decision would trigger VA's duty to assist the Veteran were his claim to be reopened. CONCLUSIONS OF LAW 1. The November 1989 decision, which denied entitlement to service connection for a right foot disability, is final. 38 U.S.C.A. § 4004(b) (West 1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1989). 2. New and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran's claim of entitlement to service connection for a right foot disability was previously denied by a December 1989 rating decision. The Federal Circuit has held that a RO decision becomes final "only after the period for appeal has run," and that "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). The Court has also held that if "new and material evidence is received within one year after the date of mailing of an RO decision, it may be 'considered as having been filed in connection with the claim which was pending at the beginning of the appeal period' that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010) (emphasis added) (citation omitted). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009). In this case, while the Veteran filed a notice of disagreement with the November 1989 rating decision, he failed to perfect an appeal following the issuance of a statement of the case in December 1989, and he failed to submit any additional evidence within a year of the December 1989 rating decision, making that decision final. 38 U.S.C.A. § 4004(b) (West 1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1989). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). New evidence is defined as evidence not previously submitted to agency decisionmakers. 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented to reopen the claim. The Board notes that the Veteran's service medical records could not be located at the time of the November 1989 rating decision and have not been located since, possibly because they were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri (NPRC). In such cases, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt rule due to the absence of possible pertinent service medical records. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). At the time of the November 1989 rating decision, the evidence of record included the Veteran's assertions in his June 1988 claim that he had broken his right foot in 1954 at West Palm Beach AFB, that the foot had not healed correctly, and that he had developed a growth or bone that protruded away from the top of his foot causing pain over the years. Social Security Administration (SSA) records failed to note any right foot disability, noting only back, hip, and neck problems. Records also showed that the Veteran had experienced considerable trauma in 1972 in a work accident in which he was knocked over and down an embankment by a large railroad dumpster, causing multiple pelvic fractures, subluxation of the left sacroiliac joint, and marked displacement of the entire left hemipelvis. VA treatment records at the time of the November 1989 rating decision showed that in June 1988 the Veteran had a dermatofibroma or cyst excised from his right foot. The Veteran again stated at that time that he had fractured his right foot in 1954 and had a cyst on that foot ever since. However, x-rays did not how any significant post fracture deformity, as there was no bone expansion or exostosis, and no calcification in the subjacent tissues. The radiologist stated that there were no significant findings about the base of the 5th metatarsal and no significant fracture deformity centered around the proximal end of the 5th metatarsal. The Veteran underwent intensive inpatient treatment for two weeks in 1988 for back pain, but while the excision of the dermatofibroma was noted, there was no mention of any in- service foot fracture, despite discussion of a pelvis fracture in 1972 and development of neck pain in 1985. The Veteran's extremities were noted to be within functional limits in terms of range of motion and muscle power. To summarize, at the time the Veteran's claim was denied in November 1989, the Veteran had clearly made known his assertion that he had fractured his right foot during service and that he believed that this had led to surgery on the foot in 1988. The foot surgery was also fully documented. The Veteran filed to reopen his claim in July 2009, indicating once again that he had fractured his right foot in service. In August 2009 the Veteran wrote that he injured his right foot in service playing football and was placed in traction for five days and given physical therapy for approximately eight weeks. He stated that he had continued to experience weakness stiffness, soreness, instability in his right foot and had to elevate the foot at night. He asserted that he had his first surgery for his fractured instep in 1989, just before applying for service connection for his right foot. A similar statement was submitted in October 2009. Having reviewed the Veteran's statements, the Board notes that while the Veteran has added additional information such as that the alleged injury resulted from a football injury; the Veteran's basic contention that he fractured his right foot during service has not changed. Several VA treatment records have also been obtained, but the only two which address the right foot are from June 2010. On one occasion, the Veteran presented with a 2 inch oblong raised area on top outer side of right foot, without any redness or warmth noted. The Veteran denied experiencing any pain and indicated that the raised area had been present since the previous week. The Veteran again reported that he had broken his foot in the military in 1954 and stated that the injury had never healed right. Ten days later, the Veteran presented with swelling on the forefoot of the right foot, which had begun approximately three weeks earlier without any injury or trauma. The Veteran denied any falls or dropping anything on the foot, stating that it just kind of swelled up. It was very painful and difficult for him to get out of bed. In this case, the Veteran's claim was previously denied, because it was felt that he did not have a right foot disability as a result of his military service. The cornerstone of the Veteran's claim since he initially filed his claim in 1988 was that he had fractured his foot in service. However, no additional evidence has been submitted since his claim was initially denied in 1989 to bolster this assertion. For example, no medical opinion has been submitted even suggesting that there is evidence to support the Veteran's contentions of an in-service fracture or related current, chronic right foot disability. The Veteran's claim was previously denied, because it was not found that a right foot fracture occurred during service. Since that time, no medical evidence or opinion has been advanced even suggesting that the Veteran fractured his right foot during service. This is relevant in that the evidence of record at the time of the prior denial included x-rays which did not show any residual foot fracture. Here, the only additional evidence received since the Veteran's claim was previously denied are his continued statements to the effect that he fractured his foot in service (whether made to VA or to a medical professional). However, these statements have not provided any additional insight into the alleged injury. Rather, the Veteran continues to assert, as he did in 1989, that he fractured his right foot in service and that it led to a current right foot disability. The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decisionmakers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Board acknowledges that this is a low threshold, but it is a threshold nonetheless, and as described the evidence that has been added since 1989 does not reach that threshold. Simply put, the evidence the Veteran has presented in an effort to reopen his claim is entirely duplicative of the evidence that was already of record and considered in previously denying his claim. That is, the evidence (namely the Veteran's statements) submitted since 1989 is essentially identical to his statements which were of record at the time his claim was previously denied, and the only new information that was conveyed by the Veteran's statements was that the alleged foot fracture occurred while playing football, which is not material to the adjudication of this claim. Were the Board to reopen based solely on the reiteration of a previously adjudicated contention, it would remove any purpose for the new and material requirements enacted by Congress. Thus, because the evidence that has been submitted since the Veteran's claim was previously denied is not new and material, the Veteran's request to reopen his claim for service connection for a foot disability is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established; and informed him both what "new" and "material" meant in the context of his right foot claim, and why his claim had previously been denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. Several SSA records were of record, and a request was made to SSA to determine if there were any additional records, but a response was received in January 2011 indicating that there were no records available. While a medical opinion of record was not provided with regard to the Veteran's previously denied claim, VA is not required to obtain an examination or obtain a medical opinion because VA has determined that new and material evidence has not been received and the claim has not been reopened. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003). As such, an opinion is not necessary. As noted above, the Veteran's service treatment records (STRs) are missing and likely fire-related and unavailable for review in this case. The RO previously requested the Veteran's STRs in 1988, but no records were found. The Veteran completed an information form to assist in reconstructing the missing records in March 1989. In February 2011, the RO again attempted to locate the Veteran's STRs, but once again, no records were located. The Veteran was advised of this by letters in November 2011 and January 2012. He was asked to complete and return NA Form 13055 and provide any STRs that he had in his possession. He did not submit any records. A Formal Finding on the Unavailability of Service Records was made in September 2012. In the "evidence" portion of the May 2010 SOC, the RO reiterated that no service medical records were available for review and stated that efforts to obtain the records were unsuccessful. The RO further noted that its decision would be reconsidered if the records were located at a later date. Therefore, in light of the foregoing, the Board finds that further efforts to obtain missing service records would be futile and the duty to notify the Veteran of VA's inability to obtain records, as outlined in 38 C.F.R. § 3.159(e), was satisfied. The Board is aware that when, as here, service records are unavailable through no fault of the Veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the Board concludes that any heightened duty to assist has been met by the above discussion. It is also noted that the Veteran requested a Travel Board hearing in his substantive appeal. He was initially scheduled for a hearing at the Philadelphia RO in October 2012, but he postponed the hearing. He was rescheduled for a hearing in May 2013, but he subsequently contacted the RO and requested a video hearing, which he was then scheduled for a video hearing at the Lebanon VAMC. Unfortunately, the Veteran failed to report to the scheduled hearing and he neither expressed good cause for his absence nor request to be rescheduled. Thus, given his failure to appear, without the provision of any good cause for his absence, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.701(d). As such, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right foot disability, the claim is not reopened, and the appeal is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs