Citation Nr: 1338896 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-01 210 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim of service connection for varicose veins, venous insufficiency, and venous stasis. ATTORNEY FOR THE BOARD J. Moses, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty for training (ACDUTRA) from August 1962 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision by the VA Regional Office (RO) in Indianapolis, Indiana, which determined that new and material evidence had not been received to reopen the Veteran's claim of service connection for varicose veins, venous insufficiency, and venous stasis. FINDINGS OF FACT 1. In September 2008, the Board denied service connection for varicose veins, venous insufficiency, and venous stasis. The Veteran was provided a copy of the Board's decision and his appellate rights, but he did not appeal the decision. 2. Evidence received since the September 2008 Board decision denying service connection for varicose veins, venous insufficiency, and venous stasis is new to the claims file, but is either cumulative of evidence previously considered or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The September 2008 Board decision that denied service connection for varicose veins, venous insufficiency, and venous stasis is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2013). 2. New and material evidence has not been received to reopen service connection for varicose veins, venous insufficiency, and venous stasis. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. With respect to new and material evidence claims, VA must notify a claimant of the evidence and information that is necessary to (1) reopen a claim, and (2) establish entitlement to the underlying claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Kent v. Nicholson, 20 Vet. App. 1 (2006). Thus, VCAA notice must include an explanation of the meaning of both "new" and "material" evidence, and must describe the particular type of evidence necessary to substantiate any service connection elements found to be insufficiently shown at the time of the prior final denial. In a July 2009 letter, the RO provided preadjudicatory VCAA notice to the Veteran regarding what information and evidence is needed to substantiate a claim of service connection on the merits, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The July 2009 VCAA notice letter included how the VA determines disability ratings and the effective date of the claim, and also provided the Veteran with adequate notice of the type of new and material evidence required to reopen his claim. Therefore, notice criteria under Kent are met. VA's duty to assist is met as it has made reasonable efforts to obtain relevant records and evidence. In his July 2009 claim to reopen the previously denied claim, the Veteran identified a November 2001 record of treatment by Dr. W.B., which had been associated with the claims file prior to the Board's September 2008 decision. The information and evidence that has been associated with the claims file also includes service treatment records, a VA examination, private treatment records, lay statements, Social Security Administration (SSA) decision notices and records in connection with its decision to grant disability benefits to the Veteran. Attempts were made to obtain additional records from SSA, but that agency responded that no further records exist. The Veteran was notified in March 2011 of VA's inability to obtain additional records from SSA; he responded with copies of award letters from SSA. However, in connection with the prior claim, VA had obtained his file from SSA in 2007. New and Material Legal Criteria In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). However, if the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. New and Material Evidence Analysis In September 2008, the Board denied the Veteran's appeal for service connection for lower extremity varicose veins with venous insufficiency and venous stasis (claimed as pain and swelling of the lower extremities as a residual of cellulitis), concluding that no nexus was established between the Veteran's service and his current disorder. The evidence before the Board at the time of its September 2008 decision consisted of service treatment records, a VA examination, private treatment records, Social Security Administration (SSA) records, statements of the Veteran, and an additional lay statement. The Board decision was sent to the Veteran's address of record, and he does not allege that he did not receive it. He was provided his appeal rights, but did not appeal the decision, nor has he requested that it be vacated or reconsidered. Therefore, the Board decision is final. For evidence to be new and material in this case, it would have some tendency to show that the Veteran's currently diagnosed varicose veins, venous insufficiency, and venous stasis are related to service. Existence of an in-service event and current disability were not the basis of the September 2008 Board denial. Evidence received subsequent to the September 2008 Board decision includes: a 1962 service treatment record, the Veteran's statements, additional lay statements, and copies of notice letters from SSA and a letter regarding disability pension. The service treatment record is not new, as it is duplicative of the evidence previously of record and was addressed in the September 2008 Board decision. As previously noted, the November 2001 record of treatment by Dr. W.B., identified by the Veteran in his July 2009 claim to reopen, was associated with the claims file prior to the Board's September 2008 decision. Dr. W.B.'s diagnosis was discussed in the Board's decision and, therefore, is not new as it is duplicative of the evidence that was previously of record. The Veteran's statements as to his in-service treatment and post-service symptoms are also not new, since they are duplicative of his prior assertions (i.e., see his lengthy 2006 statements). The current statements add nothing new. The notice letters from SSA are not new. The Veteran previously submitted the same documents in 2007. The Veteran's SSA records were previously of record, including medical records. Therefore, the fact that he was receiving disability benefits was before the Board in 2008. The Veteran also submitted a 2009 letter stating he receives disability pension. This evidence is not new as it is duplicative of an identical letter dated in 2006. The letter regarding disability pension contains no information about the claimed condition. The only new evidence consists of the lay statements the Veteran submitted, but this evidence is not material evidence upon which the claim may be reopened. In the lay statements, various individuals corroborate the Veteran's account of his post-service symptomatology. The new evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, i.e., whether the Veteran's current disability is related to service. To the extent some of these individuals have attempted to show a relationship between the Veteran's symptoms and his service, there is no showing that they possess the medical competence to do so. Nor could the lay statements reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. In connection with the prior claim, VA obtained a medical opinion which was unfavorable. Because the new evidence has not met the threshold burden of being both new and material evidence to reopen the final disallowed claim, the benefit of the doubt doctrine is not applicable and the claim remains denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been received, the appeal to reopen service connection for varicose veins, venous stasis, and venous insufficiency is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs