Citation Nr: 1340485 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-39 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral pes planus, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1970 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Although the RO has determined that new and material evidence has not been submitted to reopen the claim for service connection for bilateral pes planus, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In January 2012, the Veteran advised the Board that DAV was no longer his representative. He stated that he had appointed Texas Veterans Commission as his power of attorney (POA). An Appellant's Brief was, dated in April 2013, was submitted by DAV on the Veteran's behalf. However, as the Board noted in its May 2013 remand, no Appointment of Veterans Service Organization As Claimant's Representative (VA Form 21-22) nor a Statement of Accredited Representative in Appealed Case (VA Form 646) had been submitted by Texas Veterans Commission. As such, the Board remanded the claim to have the RO contact the Texas Veterans Commission and request that the Veteran's signed POA in favor of their organization and a VA Form 646 be submitted on the Veteran's behalf. In a July 2013 letter, the Veteran was informed that if he did not submit a signed VA Form 21-22 and have the Texas Veterans Commission submit a VA Form 646 on his behalf within 30 days, a decision would be rendered on his appeal. As of the date of this decision, none of the requested documents have been submitted and the Veteran has not appointed a new representative. Hence, the Board has recognized the Veteran as proceeding pro se in this appeal. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In an unappealed rating decision issued in May 1971, the RO denied service connection for bilateral pes planus. 2. The evidence associated with the claims file subsequent to the May 1971 denial is cumulative or redundant of the evidence previously of record or is not sufficient to raise a reasonable possibility of substantiating the claim for service connection for bilateral pes planus. CONCLUSION OF LAW New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral pes planus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, 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. Pelegrini v. Principi (Pelegrini), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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). VCAA notice in a new and material evidence claim (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. Id. In November and December 2007 letters, issued prior to the initial adjudication of the claim to reopen, the agency of original jurisdiction notified the Veteran of the evidence needed to substantiate his claim for service connection and of the evidence required under Kent, supra, regarding new and material evidence to reopen a previously denied claim. The November and December 2007 letters did not explicitly tell the Veteran of the reasons for the 1971 denial. However, the Veteran was previously sent a copy of the May 1971 decision; and he received statements of the case, which informed him of the specific reason for the prior denial. While these post-decisional documents could not constitute VCAA notice, they should have put the Veteran on notice as to what was required. He has had months, and in some cases, years to respond to the notice. Hence the Veteran had a meaningful opportunity to participate in the adjudication of the claim and was not prejudiced by the absence of full VCAA notice. The Veteran has substantiated his status as a Veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claim, in the November and December 2007 letters. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment and VA treatment records. The Veteran has not reported any private treatment. The Veteran has not been afforded a VA examination with regard to his claim to reopen. However, an examination is not required prior to reopening the finally denied claim. 38 C.F.R. § 3.159(c)(4)(iii). The Board finds that VA has complied with the VCAA's notification and assistance requirements and the appeal is ready to be considered on the merits. Legal Criteria As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3. 156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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 submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. 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, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 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). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Analysis In a May 1971 rating decision, the RO denied the Veteran's claim for service connection for bilateral pes planus, based on a finding that there was no evidence showing that the Veteran's pes planus was aggravated in service. See May 1971 denial. The Veteran did not file an appeal and the decision became final. The Veteran's current claim to reopen was received in September 2007. At the time of the May 1971 denial, the evidence of record included the Veteran's May 1970 enlistment examination, which shows that the Veteran's feet were evaluated as normal and is negative for any evidence of complaints of foot trouble. However, the record also included service treatment records which show that in January 1971, the Veteran complained of pain in both feet for one month. He was referred to podiatry, where he reported that he fractured his foot in 1966, 1967 and 1969, and that he had pes planus, with pain in the left foot. During a February 1971 Medical Board evaluation, he gave a history of pain in the left foot with prolonged weight bearing and similar problems before entering the military. He was also noted to have a history of flat feet and pain with prolonged walking and running since childhood. On physical examination, he was noted to have pes valgo planus with flat feet and X-rays revealed spurring of the head of the left talus. He was diagnosed with bilateral pes planus and it was recommended that he be discharged due to his bilateral foot disability, which the Medical Board determined existed prior to entrance into the military. The medical evidence added to the record since the May 1971 denial includes VA outpatient treatment records from the VA Medical Center in Houston, Texas dated from September 1989 to August 2009. This evidence does not indicate that the Veteran has bilateral pes planus that was caused or aggravated during active military service. Instead, it shows that the Veteran has been treated for complaints of foot pain, that the Veteran had surgery on his right foot in February 2007 related to a bunion, and that in January 2009 he was treated for left foot pain related to a scar. However, there is no evidence whatsoever of a current diagnosis or treatment for pes planus. Therefore, while new, this evidence of post-service treatment for bilateral foot pain is not material because it does not relate to an unestablished fact necessary to substantiate the claim, i.e., that the Veteran has bilateral pes planus that was incurred or aggravated during active military service. Accordingly, it is not new and material. The record also includes statements from the Veteran. In and August 2002 statement, he argued that he the military aggravated whatever foot condition he may have had, which must have been insignificant if it was not noted on the induction physical. In November 2007, he alleged that his bilateral foot condition developed and was aggravated during military service, and that since 1973, he has struggled with severe flat feet. While new, these statements are not material because although they relate to an unestablished fact necessary to substantiate the Veteran's claim, i.e., whether the Veteran's pre-existing bilateral foot disability was aggravated beyond the normal progression of the disease; they do not raise a reasonable possibility of substantiating the claim by showing that the Veteran's pre-existing bilateral foot disability was aggravated in service. In this regard, the Board notes that the Veteran is competent to report what he experienced in service, and the symptoms of any current foot disability; however, as a layperson; he does not have the expertise to opine that any such disability was caused or aggravated in service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2013). In addition, lay assertions of medical causation cannot serve as a predicate to reopen a claim. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993). Therefore, the Veteran's statements are not new and material. The Board also notes that whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, while the Veteran has reported suffering from severe bilateral flat feet since 1973, there is no confirmation in the medical evidence that the Veteran has had a current diagnosis of pes planus since the filing of his current claim in September 2007. In the absence of proof of a current disability, there is no valid claim of service-connection. In sum, the evidence received since the May 1971 rating decision does not constitute competent evidence tending to show that the Veteran has current bilateral pes planus, or any other disability related to pes planus that was aggravated by his military service. As a result, the newly received evidence does not raise a reasonable possibility of substantiating any of this claim. Accordingly, the Board concludes that new and material evidence has not been presented to reopen this claim. The preponderance of the evidence is against reopening the claim, and reasonable doubt does not arise. 38 U.S.C.A. § 5107(b). ORDER New and material evidence has not been received, and the appeal to reopen the claim for service connection for bilateral pes planus is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs