Citation Nr: 1335472 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-13 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for left foot plantar callosities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from April 1956 to September 1957 and from November 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A Board hearing was scheduled for August 2013, but the Veteran did not report for it. As no explanation of that absence or request for a rescheduled hearing has been received by VA, the Board finds that the hearing request is withdrawn. The appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. An October 2005 rating decision declined to reopen the Veteran's claim for service connection for left foot plantar callosities; the Veteran did not submit a notice of disagreement with that decision, or documentation constituting new and material evidence, within the one-year appeal period. 2. Evidence submitted since the October 2005 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The October 2005 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. Evidence submitted to reopen the claim of entitlement to service connection for left foot plantar callosities is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A May 2011 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The May 2011 letter also notified the Veteran of regulations pertinent to claims to reopen based on the submission of new and material evidence. See Kent v. Nicholson, 20 Vet. App 1 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability-based benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). Although a VA examination was not conducted with respect to the Veteran's claim to reopen the issue of entitlement to service connection for left foot plantar callosities, VA is not required to obtain an examination for a claim to reopen a finally decided decision. See 38 C.F.R. § 3.159(c). Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). New evidence means existing evidence not previously submitted to VA. 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) (2013). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The October 2005 rating decision declined to reopen the Veteran's claim for service connection for left foot plantar callosities. The Veteran did not submit a notice of disagreement with that decision, or documentation constituting new and material evidence, within the one-year appeal period. Thus, it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). The October 2005 rating decision found that new and material evidence sufficient to reopen the Veteran's claim - documentation showing that the Veteran was treated for left foot plantar callosities in service or that his currently diagnosed left foot plantar callosities were related to his military service - had not been submitted. Relevant evidence associated with the record since the October 2005 rating decision consists of VA treatment records from the Tennessee Valley VA Health Care System dated from November 2008 to May 2011, and the Veteran's assertion in his May 2012 VA Form 9 that his foot condition was due to his military service in Germany. Review of the VA records reveals that the Veteran received treatment for his left foot plantar callosities in July 2010, August 2010, and September 2010; none of these records contain medical nexus statements relating the Veteran's left foot condition to his military service or otherwise addressing the issue of in-service incurrence. Thus, while the records are new, they are not material as they do not raise a reasonable possibility of substantiating the Veteran's claim. To that end, the Veteran's statement that his left foot condition is due to his service in Germany is not new. In his original August 1972 claim, he asserted that his left foot condition had its onset in 1957, with his service records showing he was stationed in Germany at the time. Thus, the assertion as to the onset of the condition in Germany in 1957 is cumulative and redundant of that evidence already of record as it was already alleged by the Veteran in a prior claim. As new and material evidence to reopen a finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The October 2005 rating decision remains final, and the appeal in this regard is denied. ORDER New and material evidence not having been submitted, the appeal to reopen the issue of entitlement to service connection for left foot plantar callosities is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs