Citation Nr: 1801069 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 075A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt (also claimed as back condition). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. In a November 2002 rating decision, the Veteran's claim for service connection for service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt was denied. 2. No notice of agreement (NOD) was filed and no further evidence was added to the claims file for one year after the November 2002 rating decision was mailed. 3. Since the November 2002 rating decision, the Veteran has not submitted evidence in support of his claim for service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt which is not cumulative or duplicative and had not previously been submitted to either the RO or the Board. CONCLUSIONS OF LAW 1. The November 2002 rating decision denying service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt is final. 38 U.S.C. § 7105(c)(2012); 38 C.F.R. § 20.302 (2017). 2. New and material evidence has not been received to reopen the Veteran's claim for service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An RO rating decision becomes final one year from the date it was mailed to the Veteran unless the veteran files an NOD or evidence is added to the file during that period. 38 U.S.C. § 7105(c) (2012). A rating decision of November 2002 denied service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt. As no NOD was filed and no evidence submitted within one year after the November 2002 rating decision was mailed, the rating decision became final. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if, either by itself or considered in conjunction with previous evidence of record, it relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The United States Court of Veterans Appeals (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran's claim for service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt has already been considered and denied by both the Board and the RO. The evidence considered by the Board in its July 1981 denial included: the Veteran's service treatment records, including notes of a preservice right leg fracture and in-service pin-removal surgery; a May 1980 VA examination; and a transcription of an October 1980 hearing. This evidence established that the Veteran had fractured his right femur and had a pin inserted before entering service. Based on complaints of pain in his leg, the Veteran underwent surgery in-service in 1968 to remove the pin. It was determined that the Veteran's right leg was approximately one half inch shorted than his left leg after surgery. The Board determined that this was a result of the initial pre-service leg injury and not a result of the medical care the Veteran received in service. The Board did not question the presence of the Veteran's well documented right leg disability or its secondary effect on his pelvis and back, but found that it was the result of a pre-service condition that was not aggravated by service. This decision was not appealed and became final. The additional evidence considered by the RO in its November 2002 denial included updated treatment records dated August 1999 through January 2002. Again, the presence of the Veteran's right leg disability was not questioned. The claim was not reopened because the evidence submitted, while new, was not material. It was not material because it was duplicative of evidence already considered, showing the presence of a disability but not showing any causal connection (nexus) between the disability and the Veteran's service. As discussed above, this decision is final. The question before the Board is whether any evidence added to the record since November 2002 is both new and material, tending to show a nexus between the Veteran's disability and his service. The relevant evidence of record added since November 2002 includes the following: Statements by the Veteran explaining his opinion that his activities during basic training and the rest of service aggravated his leg injury beyond its natural progression; treatment records dated October 1999 through April 2015. Determining the cause of the Veteran's leg pain and leg shortening is a medical issue which requires medical expertise to resolve. The Veteran has not been shown to have any specialized medical training. While the Veteran is competent to report the symptoms he experienced, he is not competent to offer an opinion as to the cause of his leg pain and leg shortening. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Therefore, the Veteran's statements are not competent nexus evidence and cannot be considered new material evidence to reopen his claim. The Veteran's treatment records show continued treatment for his disability but do not contain any medical opinion or other evidence of a nexus between his disability and service. Therefore, the Veteran's treatment records are not material to the issue of showing a nexus between his disability and his service. Because new and material evidence has not been received to show a nexus between the Veteran's disability and his service, the Veteran's claim for service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt cannot be reopened. ORDER The application to reopen the claim for entitlement to service connection for status post fracture right femur, one half inch shortening right leg, scoliosis, and pelvic tilt is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs