Citation Nr: 1338703 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-26 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for osteomyelitis, right little finger. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied entitlement to the benefit currently sought on appeal. FINDINGS OF FACT 1. In an unappealed rating decision issued in March 1983, the RO denied service connection for osteomyelitis. 2. Evidence added to the record since the March 1983 rating decision does not relate to an unestablished fact necessary to substantiate the service connection claim for osteomyelitis and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1983 rating decision, which denied service connection for osteomyelitis, is final. 38 U.S.C.A. § 7105 (West 2012); 38 C.F.R. § 3.104 (2013). 2. Evidence received subsequent to the March 1983 rating decision relating to the service connection claim for osteomyelitis is not new and material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of claims to reopen previously denied claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA must provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. In a July 2010 letter, the RO provided the Veteran with the required notice. It informed him that his claim had previously been denied because the claimed condition was not incurred in or aggravated by military service and therefore he must provide new and material evidence; evidence that related to this fact. It also provided him with notice as to the elements of the underlying claim of entitlement to service connection. It informed him of the kinds of evidence and information to submit and informed him of his and VA's respective duties in obtaining evidence. The Board finds that this notice letter satisfied VA's duty to notify. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. It is noted that VA's duty to provide a medical examination or obtain a medical opinion does not apply to a claim to reopen a finally adjudicated claim unless and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4)(iii). The Board notes that the Veteran requested a Travel Board hearing on his substantive appeal (VA Form 9). VA scheduled a hearing for November 2012 and sent out letters in October and November 2012 to notify the Veteran. These letters were mailed to his most recent address of record and his previous address of record, as the Veteran submitted a change of address in August 2011. Both letters were returned as "unable to forward" by postal authorities. It is a well-settled principle that VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran had a subsequent change of residence, "it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262 (1993). Since VA sent notice to all possible and plausible addresses, the duty to assist is satisfied. In lieu of a hearing in front of the Board, the Veteran's representative submitted an Informal Hearing Presentation in November 2013 outlining the issue on appeal. On the Veteran's claim, he indicated that there were relevant medical records at the VA Medical Center in Fort Jackson, South Carolina for treatment sought in March 2010. He later noted that the treatment records date back to July 2009. However, a review of the reveals that all reasonably identified and available medical records regarding this claim were requested by VA and the records obtained begin in February 2010. The Board finds that any additional search for records would be futile. In any case, the Veteran has not specifically asserted that any such record would relate to whether his current disability was aggravated by service, which is the central piece of evidence the Veteran needs to present in order to reopen his claim, as will be more thoroughly discussed below. 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). In this case, VA has associated the VA treatment records with the claims file. His service treatment records were associated with the claims file when he filed the original claim that was the subject of the final denial in March 1983. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection and New and Material Evidence The Veteran contends that service connection is warranted for osteomyelitis, right little finger. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 (West 2012); 38 C.F.R. § 3.303(a) (2013). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA first received a claim of entitlement to service connection for osteomyelitis in February 1983. The RO denied that claim in a March 1983 rating decision because the evidence failed to show the Veteran's disability was incurred in or aggravated by active military service or resulted from a service connected disability. VA notified the Veteran of this decision in March 1983 and included an enclosure that informed him of his procedural and appellate rights. Once the RO denies a claim, an appeal to the Board may be initiated by the filing of a notice of disagreement. 38 U.S.C.A. § 7105(a) (West 2012). The notice of disagreement shall be filed within one year from the date of mailing of the notice of the decision. 38 U.S.C.A. § 7105(b)(1) (West 2012). If no notice of disagreement is received within that time period, the decision becomes final and the claim will generally not thereafter be reopened or allowed. 38 U.S.C.A. § 7105(c) (West 2012). In this case, no document added to the record after the March 1983 notification expressed disagreement with the rating decision of the RO or an intent to appeal the decision to the Board within the required time-frame. Accordingly, the decision became final in March 1984. Further, no additional evidence was submitted in reference to disabilities of the right hand. The exception to the rule of not reopening a claim once a decision denying the claim has become final is that if new and material evidence is received, the claim shall be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2013). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The U.S. Court of Appeals for Veterans' Claims (Veterans Court) has explained that 38 C.F.R. § 3.156(a) must be read in conjunction with VA's duty to assist; i.e., the phrase "raises a reasonable possibility of substantiating the claim" in 38 C.F.R. § 3.156(a) "contemplates, . . . the likely entitlement to a nexus medical examination if the claim is reopened". This is a low threshold to meet. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In June 2010, the Veteran contacted VA in reference to his previously denied claim. The RO denied the request to reopen the Veteran's claim in an August 2010 rating decision. The basis for that denial was that the Veteran did not submit any additional evidence regarding his claim. In August 2010, the RO notified the Veteran of the decision and included an enclosure that informed him of his procedural and appellate rights. The Veteran then submitted a claim for service connection for "pain and joint involving hand, unable to bend" in October 2010. He indicated that there were medical records at the VA Medical Center relevant to this claim. VA obtained these records and associated them with the claims file. New and material evidence received within the appeal period of an unappealed RO decision denying a claim will be considered as being filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b)(2013). The Veterans Court has explained 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." See King v. Shinseki, 23 Vet. App. 464, 466 (2010) (quoting from 38 C.F.R. § 3.156(b)); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (explaining that when new and material evidence is received during the appeal period of an unappealed RO decision and such evidence is not considered by VA as part of the original claim, then the failure to file a notice of disagreement does not necessarily mean that the decision is final). The October 2010 claim regarding pain in his hand is considered as having been filed in connection with the August 2010 request to reopen the claim for entitlement to service connection for osteomyelitis. The RO again denied the request to reopen the Veteran's claim because although the evidence he submitted was new, it was not material to his claim. The Veteran filed a notice of disagreement in December 2010. VA issued a statement of the case in September 2011 and the Veteran perfected the appeal in October 2011. Thus, the threshold inquiry for the Board is whether new and material evidence has been added to the claims file since the March 1983 decision. The Board finds that it has not and, therefore, the claim may not be reopened. Now the Board turns to its explanation supporting that finding. Evidence that was not of record prior to the March 1983 decision, but that has since been added to the record includes records of treatment at the VA Medical Center in Memphis, Tennessee from February 2010 through October 2010 and the Veteran's statements in connection with his claim. The VA Medical Center records are not evidence that the Veteran's osteomyelitis, right little finger was incurred in or permanently worsened by his active service. He reported to the VA Medical Center in May 2010 complaining of an "issue with [the] bone in his hand and possible degenerative bone disease" and further requested a nerve conduction study of his right hand. He returned in June 2010 for a wrist x-ray. The examiner noted that the x-ray was negative for a bone injury. Also in June 2010, the Veteran was seen for "right hand pain" and told the examiner that "the pain has gotten worse over the last two years." In July 2010, the Veteran reported to the VA Medical Center complaining of "general right hand pain." The examiner saw "evidence of remote injury, healed fractures at the distal first and fifth metacarpal bones" and "minor osteoarthritic changes at the DIP joints of the third and fifth digits." In August 2010, the Veteran was seen for a "bilateral wrist problem" that he said he's experienced for 20 years. The Veteran returned to the VA Medical Center in September 2010 complaining of "5 years of wrist pain". The examiner was unsure of the cause of the pain, but suggested scheduling the Veteran for electromyography (EMG) to confirm a diagnosis of cubital tunnel syndrome. He was to return to the examiner after the EMG but there is no indication that the Veteran got the EMG or returned to the examiner. This evidence indicates the presence of a current disability in his right hand, which was undisputed at the Veteran's discharge. Indeed, the Veteran was medically discharged from service because of the condition at issue. The newly acquired evidence does not address whether the condition was incurred in, caused by, or permanently worsened by active service. As such, although the medical records are new in the sense that they were not in existence at the time of the last prior denial, they do not relate to an unestablished fact necessary to substantiate the claim. Indeed, such records only relate what was known at the time of the last prior denial, that the Veteran has a right little finger disability. As such, the VA medical records do not serve as new and material evidence required to warrant reopening the Veteran's claim. On his October 2011 VA Form 9, the Veteran argued that his injury was aggravated by active service and pointed to his VA records for support. However, as was explained above, such medical records simply do not relate to the unestablished fact needed to reopen his claim, which would necessarily have to address whether the Veteran's pre-existing right little finger disability was aggravated by service. The Veteran does not explain how his VA records make such a connection. As such, the Veteran's statements, in and of themselves, are neither new nor material. The Veteran is of course competent to report observations of right little finger symptoms, as such observations comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). And his lay statements are also presumed to be credible when determining whether the claim should be reopened. Justus, Supra. At best, however, the more recent medical evidence of record support the assertion that his right little finger symptoms may have worsened since his initial claim. But the crux of the evidence of record is that the Veteran had right little finger symptoms associated with osteomyelitis in 1983 at the time of his initial claim, and he continues to do so now. To the extent he is asserting that he has continued to have his symptoms post-service, such assertion is not new and material. This is because such evidence is essentially duplicative or cumulative of statements made in support of his claim when it was denied by the RO in 1983. Cf. 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). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). As no new and material evidence has been added to the record since the 1983 final denial of service connection for the right little finger disability, the criteria for reopening the claim are not met and the Board must deny the appeal. There is no reasonable doubt to be resolved as to this matter. See 38 U.S.C.A. § 5107(b) (West 2012); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having not been received, the request to reopen the claim of entitlement to service connection for osteomyelitis, right little finger is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs