Citation Nr: 1801787 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-08 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for jungle rot or fungal infection. 2. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a bilateral hip disorder with arthritis. 3. Whether there was clear and unmistakable error (CUE) in a May 2014 rating decision which assigned an effective date of April 5, 2013 for the grant of service connection for bilateral hearing loss. (The issue of whether there was CUE in a September 2015 decision by the Board of Veterans' Appeals (Board) that denied entitlement to an effective date earlier than April 5, 2013 for the grant of service connection for bilateral hearing loss is adjudicated in a separate decision.) REPRESENTATION Appellant represented by: James M. McElfresh II, Agent ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1946 to February 1948. This matter comes before the Board on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which reopened and denied entitlement to service connection for jungle rot and a bilateral hip disorder and determined that an earlier effective date of service connection for bilateral hearing loss was not shown due to a clear and unmistakable error. While the RO reopened the claims for entitlement to service connection for jungle rot and a bilateral hip disorder in the December 2015 rating decision, the Board must address the question of whether new and material evidence to reopen the claim has been received, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A September 2015 Board decision denied entitlement to service connection for jungle rot and a bilateral hip disorder. 2. When considered by itself or in connection with the evidence previously assembled, the Veteran has not submitted evidence that relates to an unestablished fact necessary to substantiate the claims or raises a reasonable possibility of substantiating the claims of entitlement to service connection for jungle rot and a bilateral hip disorder. 3. A May 2014 rating decision assigned an effective date for the grant of entitlement to service connection for bilateral hearing loss; the Veteran filed a timely notice of disagreement to this effective date, was issued a statement of the case on the issue in August 2014, and completed an appeal of the issue to the Board. 4. In its September 2015 decision, the Board denied the Veteran's appeal for entitlement to an effective date for the grant of service connection for bilateral hearing loss prior to April 5, 2013. CONCLUSIONS OF LAW 1. New and material evidence has not been added to the record since the September 2015 Board decision; thus, the claims of entitlement to service connection for jungle rot and a bilateral hip disorder are not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 2. The May 2014 rating decision was subsumed by the Board's September 2015 decision, and is not subject to challenge based on CUE; therefore, the issue of whether there was CUE in the May 2014 rating decision must be dismissed. See Dittrich v. West, 163 F.3d 1349, 1352-53 (Fed. Cir. 1998); Donovan v. West, 158 F.3d 1377, 1381-82 (Fed. Cir. 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I.a. Claims to reopen - Legal Criteria Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is 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 cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Lay contentions to support new theories alone are not competent evidence, and cannot serve to support reopening of a claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See id. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). I.b. Claims to reopen - Background and Analysis The Board denied the Veteran's claims for entitlement to service connection for jungle rot and a bilateral hip disorder in a September 2015 decision. The Board acknowledged that many of the Veteran's service treatment and personnel records were not available, but noted that his separation examination report indicated that the Veteran's musculoskeletal system and skin were normal at discharge. Moreover, post-service treatment records did not show any complaints, treatment, or diagnoses of a bilateral hip disorder or skin disorder during or after service. The Veteran had not provided any medical evidence of treatment, complaints, or diagnoses related to any bilateral hip disorder or skin disorder, including jungle rot of the ears, in the years since service. In its September 2015 decision, the Board found that the Veteran's reports of on-going problems were inconsistent with the record and not credible. Since the September 2015 Board decision, the Veteran has not submitted any medical evidence showing a current diagnosis of or treatment for skin or hip disorders. In addition, the Veteran did not submit any evidence reflecting any incidents or events in service that may be related to a current skin or hip disability. In November 2015, the Veteran submitted several photographs of him standing and using a cane. In March 2016, the Veteran's representative submitted additional arguments and evidence in support of his service connection claims. The representative contended that the reasons there were no service treatment record's reflecting treatment for the Veteran's jungle rot was that many service members during that time in the jungle self-treated. He included a picture of an Army W.W.II., First Aid Kit, reflecting the contents. The Veteran's representative also noted that, when the Veteran was out of first aid, he had to seek a medic and many times out in the dense jungle that was an impossibility. He argued that the Veteran was accepted into service in good condition, served in a jungle and that jungle rot was only found the in the Pacific. He argued that the Veteran came in contact with it in Japan. With regard to the Veteran's claim for entitlement to service connection for a bilateral hip disorder, the Veteran's representative argued that the Veteran's military occupational specialty (MOS) was as an anti-tank gun crewman and a refrigeration and air condition mechanic, and that these positions in service involved repetitive motion on a daily basis compromising his hips and back, thus making this a causally related service connection. He included a report entitled Development of the Occupational Physical Assessment Test for Combat Arms Soldiers, issued in October 2015 by the U.S. Army Research institute of Environmental Medicine in support of his contentions. The Board finds that this evidence is new because it was not before the adjudicator in September 2015. However, the Board finds that the new evidence is not material because the evidence does not directly address the reason the claim was previously denied on the last adjudication in September 2015, and the evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claims for entitlement to service connection for a current skin or hip disability. While the Veteran uses a cane, the evidence does not indicate that the Veteran has a bilateral hip disorder or that he has a hip disorder related to service. The arguments addressing the effects of his service in the jungle and his MOS compromising his hips and back are redundant of those made at the time of the September 2015 Board decision. With regard to the pictures of the first aid kit and the report submitted by the Veteran's representative, these are not specific to the Veteran and the findings were not based on his particular history and circumstances. Evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, crucially, these items are general in nature and do not specifically relate to the facts and circumstances surrounding this particular case, as such, these submissions have minimal probative value. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the Veteran's claim, but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). The Board finds that this new evidence of record is not consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has not been received to reopen the claims of service connection for jungle rot and a bilateral hip disorder. Hence, the appeals are denied. II. CUE claim - May 2014 rating decision The Veteran asserts that there is CUE in the May 2014 rating decision's assignment of an effective date for the grant of entitlement to service connection for bilateral hearing loss. Previous RO determinations which are final and binding, including decisions on entitlement to service connection, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C.A. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). However, when a RO decision is reviewed on appeal by the Board, the RO decision is subsumed by the Board decision and may not be collaterally attacked. See Dittrich v. West, 163 F.3d 1349, 1352-53 (Fed. Cir. 1998); Donovan v. West, 158 F.3d 1377, 1381-82 (Fed. Cir. 1998). Rather, in such cases the Veteran must proceed before the Board and urge that there was CUE in the Board decision that subsumed the RO determination. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). To allow such a challenge to the subsumed rating decision would, in effect, improperly allow the RO to review the determinations of the Board. Id.; see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed.Cir.1994). In this case, the May 2014 rating decision assigned an effective date of April 5, 2013 for the grant of entitlement to service connection for bilateral hearing loss. The Veteran completed an appeal of those issues to the Board. In September 2015, the Board denied an effective date prior to April 5, 2013 for the grant of entitlement to service connection for bilateral hearing loss. Thus, the May 2014 rating decision was subsumed by the September 2015 Board decision, and cannot be subject to a CUE claim as set forth in the law summarized above. Therefore, the current appeal for a finding of CUE in the May 2014 rating decision must be dismissed as a matter of law. ORDER New and material evidence having not been submitted, the petition to reopen a claim for service connection for jungle rot or fungal infection is denied. New and material evidence having not been submitted, the petition to reopen a claim for service connection for a bilateral hip disorder with arthritis is denied. The claim for CUE in the May 2014 rating decision's assignment of an effective date of April 5, 2013 for the grant of entitlement to service connection for bilateral hearing loss is dismissed. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs