Citation Nr: 1802860 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 00-11 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of malaria; and, if so, whether the criteria for service connection are met. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral hip disability. 4. Entitlement to service connection for residuals of fracture of the right and left arms. 5. Entitlement to service connection for residuals of fracture of the right and left hands. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Vang, Associate Counsel INTRODUCTION The Veteran's original VA claims file has been lost. The current file reflects efforts to reconstruct the record from other sources of information. The Veteran served on active duty from October 1967 to May 1969 and from February 1970 to April 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision and a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at videoconference Board hearings in April 2007, March 2012 and July 2012 before different Veterans Law Judges (VLJ). He also testified at a Central Office Board hearing in January 2017 before the undersigned VLJ. Transcripts of these proceedings are associated with the claims file. As the April 2007 hearing contained only ancillary assertions regarding the timeliness of the appeals of the above-listed issues, and the March 2012 and July 2012 hearings were conducted before a VLJ no longer employed by the Board, a single judge decision rather than a panel decision is appropriate for the claims currently on appeal. See 38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3 (generally providing that a proceeding before the Board may be assigned either to an individual VLJ or to a panel of not less than three members of the Board.). These claims were previously before the Board in December 2007, June 2012, October 2012, and May 2017. Of note, previous Board decisions have yet to address the Veteran's July 2003 petition to reopen his claim for entitlement to service connection for residuals of malaria; as discussed further below, the claim is considered re-opened. The issues of entitlement to service connection for residuals of malaria, a bilateral knee disability, a bilateral hip disability, residuals of fracture of the right and left arms, and residuals of fracture of the right and left hands are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The May 1970 decision that denied the Veteran's claim for entitlement to service connection for residuals of malaria was not appealed, nor was new and material evidence received during the appeal period. 2. The evidence received since the May 1970 decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for residuals of malaria. CONCLUSIONS OF LAW 1. The May 1970 decision that denied the Veteran's claim for entitlement to service connection for residuals of malaria is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received and, as such, the claim for entitlement to service connection for residuals of malaria is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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). Discussion of VCAA compliance is not required as the Veteran's petition to reopen the claim is granted, as discussed further below. New and Material Evidence 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. New evidence means existing evidence not previously submitted. 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. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran filed an original claim for service connection for residuals of malaria in July 1969 that was denied in a May 1970 decision. The Veteran did not submit a timely appeal or additional evidence within the applicable appeal period. Accordingly, the May 1970 decision is final. A petition to reopen the claim was submitted in July 2003. New evidence submitted since the final May 1970 decision includes statements in the July 2003 claim that he was diagnosed with malaria in service. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, as the above-mentioned evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim, the claim for residuals of malaria is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. To this limited extent only, the claim is granted. ORDER New and material evidence having been received, reopening of the previously denied claim of entitlement to service connection for residuals of malaria is warranted and, to this extent only, the appeal is granted. REMAND The Veteran seeks service connection for residuals of malaria, a bilateral knee disability, a bilateral hip disability, residuals of fracture of the right and left arms, and residuals of fracture of the right and left hands. A review of the record indicates that the AOJ did not readjudicate the Veteran's claims as directed in the May 2017 Board remand. Though new VA medical records were associated with the claims file, there is no Supplemental Statement of the Case (SSOC) of record pertaining to the above-listed issues or the newly associated evidence. An SSOC is required when, pursuant to a Board remand, the AOJ develops the evidence or cures a procedural defect, unless the only purpose of the remand is to assemble records previously considered or the Board specifies in the remand that a SSOC is not required. See 38 C.F.R. § 19.31(c). As these exceptions do not apply, issuance of a SSOC was required in this case. Accordingly, the issues on appeal must be remanded for a SSOC. If the Board is in error that there is no SSOC in the file, the AOJ should indicate the location of the SSOC in a memorandum to the file. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records not already of record relating to the claim. 2. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the requested benefit remains denied, the Veteran and his representative should be provided with a SSOC and an opportunity to respond. The SSOC should address all new evidence associated with the claim during the May 2017 remand. If the Board is in error that there is no SSOC in the file, the AOJ should indicate the location of the SSOC in a memorandum to the file. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs