Citation Nr: 1333501 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-44 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active service from January April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in May 2010. A statement of the case was issued in October 2010, and a substantive appeal was received in October 2010. The Veteran appeared before the undersigned at a hearing in October 2011. FINDINGS OF FACT 1. A July 1972 Board decision denied the Veteran's claim of service connection for a bilateral foot disability, finding that a bilateral foot disability existed prior to his active duty service and that there was no aggravation of the pre-service disability during active duty. 2. Evidence received since the July 1972 Board decision does not tend to show that the Veteran's bilateral foot disability was aggravated during active military service; does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral foot disability; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The July 1972 Board decision denying the Veteran's claim of entitlement to service connection for a bilateral foot disability is final. 38 U.S.C.A. § 7103 (West 2002). 2. Evidence received since the July 1972 Board decision is not new and material; accordingly, the claim of service connection for a bilateral foot disability may not be reopened. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in September 2009. The notification complied with the specificity requirements of Dingess by identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002) by identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The September 2009 letter also informed the Veteran of the basis of the prior final denial for a bilateral foot disability and the specific evidence needed to reopen his claim, and the letter advised the Veteran of the applicable laws and regulations and the general information and evidence necessary to reopen his service connection claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist An April 2010 private medical opinion has been secured. During the October 2011 hearing, the Veteran testified that all medical evidence pertinent to his claim was submitted to VA. The Board acknowledges that no VA examination report is of record with an etiology opinion specifically addressing the issue of entitlement to service connection for a bilateral foot disability. However, as new and material evidence has not been received to reopen the claim, there is no duty to afford the Veteran an examination with respect to this disability. 38 C.F.R. § 3.159 (c)(4)(iii). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Analysis Historically, the Veteran filed a claim of service connection for a bilateral foot disability in April 1971. The claim was denied by the RO in May 1971 and the Veteran appealed the denial to the Board. In a July 1972 decision, the Board denied the appeal, finding that a bilateral foot disability existed prior to his active duty service and that there was no aggravation of the pre-service disability during active duty. The July 1972 Board decision is final. 38 U.S.C.A. § 7103 (West 2002). Applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. "New" evidence means evidence not previously submitted. "Material" evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claims. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In order to substantiate a claim of service connection, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, 'credibility' of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court 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." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue. The July 1972 Board decision is the last final denial of this claim on any basis. Of record at the time of the July 1972 Board decision were the Veteran's service treatment records, which included a July 1968 pre-induction examination that showed the Veteran had second degree pes planus upon enlistment, numerous in-service treatment records that showed the Veteran was treated for bilateral foot pain in service, and the surgical reports from March and April 1970. Also, of record at the time of the July 1972 Board decision was a November 1971 report of the Veteran's private podiatrist, which detailed the Veteran's disabilities; a February 1972 VA medical examination report, which detailed the Veteran's disabilities; and numerous statements from the Veteran, in which he alleged his bilateral foot disability was worsened by his active service. The evidence associated with the claims folder subsequent to the July 1972 Board decision includes: additional statements from the Veteran, again asserting that his bilateral foot disability was aggravated by his active service; an April 2010 report of Dr. J. Muha, which noted a history of progressive pain in his feet; and the transcript of the Veteran's testimony from the October 2011 hearing. Because the Veteran's claim of service connection for a bilateral foot disability was previously denied on the basis that such disability was not shown to be related to his service, for evidence to be new and material, it would have to tend to show that the Veteran's bilateral foot disability was aggravated by his military service beyond the natural progression of the disability (i.e., the newly received evidence must establish a medical nexus). While the April 2010 report of Dr. Muha is new evidence, in that it was not previously associated with the record; it is not material evidence, as it does not tend to show that the Veteran's bilateral foot disability was aggravated by his military service. Significantly, while the report notes the Veteran's current foot disabilities and a history of progressive pain, it does not address the matter of a nexus between the Veteran's current disability and his service. Notably, there is no discussion as to whether there was any aggravation of the Veteran's preexisting bilateral foot disability during his period of service. Rather is notes onset of the disability prior to service and a current diagnosis, both which were already established at that the time of the July 1972 decision. As such, the April 2010 report does not address the unestablished fact necessary to substantiate the claim of service connection for a bilateral foot disability; and while new, is not material. Additionally, the Veteran has submitted numerous statements, and testified before the Board, in which he continues to assert that his preexisting bilateral foot disability was aggravated by his military service. This is the same opinion he has asserted since initially filing his claim in 1971. The Board finds these statements cumulative and redundant of the evidence considered at the time of the July 1972 decision, and therefore, are not new evidence. In summary, the evidence missing at the time of the July 1972 Board decision continues to be absent. Specifically, no additional evidence received since the July 1972 decision is new evidence that tends to show that the Veteran's preexisting bilateral foot disability increased in severity during his period of service. Therefore, the additional evidence received since July 1972 does not address the unestablished fact necessary to substantiate the claim of service connection for a bilateral foot disability; does not raise a reasonable possibility of substantiating such claim; and is not new and material. Accordingly, even the low threshold standard for reopening endorsed by the Court in Shade, 24 Vet. App. 10 (2010) is not met, and the claim of service connection for a bilateral foot disability has not been reopened. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral foot disability. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs