Citation Nr: 1803036 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 12-00 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral claw foot, and if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, claimed as general anxiety and dysthymic disorders, to include as secondary to a bilateral claw foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) from June 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The Board notes that the scope of a service connection claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms and other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has broadly characterized the Veteran's claim as one for service connection for an acquired psychiatric disorder. The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. In a June 2007 decision, the Board denied service connection for bilateral claw foot; the Veteran moved for reconsideration and the motion was denied in November 2008. 2. The evidence submitted to the record subsequent to the June 2007 Board decision is cumulative of the evidence previously of record; or it does not relate to an unestablished fact necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral claw foot. 3. In a January 2008 rating decision, the RO denied service connection for generalized anxiety and for dysthymic disorder; the Veteran did not timely file an appeal or submitted new evidence. 4. The evidence submitted to the record subsequent to the January 2008 rating decision is cumulative of the evidence previously of record; or it does not relate to an unestablished fact necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW New and material evidence has not been received to reopen the claims of entitlement to service connection for bilateral claw foot, and acquired psychiatric disorder, claimed as anxiety and dysthymic disorder, to include as secondary to bilateral claw foot. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (c) (West 2014). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b) (2017). New evidence is defined as existing 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Claw Foot The Veteran's claim for entitlement to service connection for bilateral claw foot was denied and reconsidered in rating decisions dated February 1982, January 2001, July 2004, and August 2010; and in Board decisions dated September 2002, and June 2007. Notably, the Board's June 2007 decision denied the Veteran's request to reopen his claim of entitlement to service connection for bilateral claw foot. The Board determined the Veteran did not submit new and material evidence linking his claimed disability to service, either by aggravation or otherwise. In June 2007, the Veteran submitted a statement from a VA physician stating that marching could have contributed to the Veteran's bilateral foot disability. The Veteran also submitted a motion for reconsideration to the Board in light of this new evidence. The Board denied the motion in November 2008. As such the Board's decision became final. 38 C.F.R. § 20.1100 (a). The pertinent evidence added to the record subsequent to the June 2007 Board decision, and the November 2008 denied motion for reconsideration, includes the Veteran's August 2016 hearing testimony, a complete military personnel record, completed service treatment records (STRs) and additional VA treatment records. The Board finds that none of this evidence satisfies the definition of new and material evidence. The VA treatment records show bilateral claw foot deformity as part of the Veteran's continuing problem list. They also show the Veteran continues to have problems with his feet. The military personnel records and STRs show the Veteran's time in service and his complaints, treatment, and eventual Medical Board discharge due to his congenital and preexisting claw foot deformity. At his Board hearing, the Veteran asserted his foot problems arose as a result of excessive marching he did in basic training. According to the Veteran, his company leader, an ex-Marine, made the Veteran's company march excessively and the Veteran's boots were too tight. When the Veteran went to the doctor, the doctor told him he would have him sent home on a medical discharge due to his feet. The Veteran also stated a Navy doctor in California had a report stating the Veteran was hurt before enlisting in the military. The Veteran asserted he was not hurt before he enlisted as the Navy would not have accepted his voluntary enlistment if he had been hurt prior to enlistment. The Board finds this evidence does not satisfy the definition of new and material evidence. Although the VA treatment records, military personnel file, and completed STRs are new evidence as they were not considered by the Board's June 2007 decision, they do not constitute material evidence as the records are cumulative of the evidence already in the record. The fact that he has continuing foot problems due to his bilateral claw foot, as well as the fact he was medically discharged from service due to the pre-existing claw foot deformity have been considered in past rating and Board decisions. As such, the evidence submitted, while new, is not material. Likewise, his testimony at the August 2016 Board hearing does not constitute new and material evidence. His assertions that it was the constant marching in the military that caused or aggravated his bilateral claw foot had been previously considered. The Veteran had essentially provided the same testimony in previous statements and at previous Board hearings. With regard to the Veteran's assertion that he was not hurt before entering service, previous statements, from the Veteran and people close to him, as well as his testimony in previous Board hearings already contained that information. In other words, the evidence submitted, while new, was cumulative of evidence previously of record. Thus, the Veteran's testimony at his August 2016 Board hearing is not material. He is simply reiterating his prior statements. As new and material evidence has not been received, the claim of entitlement to service connection for a bilateral claw foot disability may not be reopened. Acquired Psychiatric Disorder Turning to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, the Board notes the Veteran initiated his claim for service connection for anxiety and dysthymic disorders in a March 2007 statement. This statement also raised the theory of secondary service connection, as the Veteran stated his psychiatric conditions were due to his bilateral claw foot. The RO denied the claim on a direct basis in a January 2008 rating decision. The Veteran did not appeal this decision, nor did he submit additional evidence within a year of the decision. Therefore, the rating decision became final. 38 C.F.R. § 20.302. In a June 2009 rating decision, the RO considered the claim on a secondary basis and concluded service connection was not warranted. Additionally, the RO declined to reopen the claim on a direct basis. The Veteran submitted a notice of disagreement (NOD) in May 2010 and the RO issued a rating decision in August 2010 denying service connection because no new and material evidence had been submitted. The RO, in its December 2011 statement of the case (SOC), denied the claim on the merits. The Veteran properly appealed the claim and submitted additional evidence. The RO reopened the claim and denied entitlement to service connection in its March 2016 supplemental statement of the case (SSOC). The pertinent evidence associated with the record subsequent to the January 2008 rating decision consisted of VA treatment records, statements, complete military personnel records and STRs, and the Veteran's testimony at his August 2016 Board hearing. The Board now finds this evidence is not new and material as defined in 38 C.F.R. § 3.156. The military personnel records and STRs contain no evidence of complaints of, treatment for, or diagnosis of any psychiatric disorder. As such they cannot be considered "service records" as defined by 38 C.F.R. § 3.156 (c)(1), and therefore, do not trigger a reconsideration of the claim. The VA treatment records continued to show a history of anxiety and dysthymic disorder, as well as the diagnoses of anxiety and dysthymic disorder in 2002 and 2005, respectively. While the treatment records are new as they were not previously considered, they are not material because they are cumulative of evidence that had already been considered. Likewise, at his Board hearing, the Veteran asserted his psychiatric conditions were due to service in Vietnam and due to his bilateral claw foot. However, his potential Vietnam service was considered as part of the direct service connection theory of entitlement. Furthermore, the Veteran testified he did not serve in Vietnam because his battalion "got wiped out" during his June 2002 Board hearing. As such, the Veteran's August 2016 testimony is cumulative of evidence previously of record and therefore is not material. Additionally, as the Veteran is not service-connected for his bilateral claw foot disability service connection for a psychiatric disorder on a secondary basis is not warranted. See 38 C.F.R. § 3.310. As new and material evidence has not been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to bilateral claw foot may not be reopened. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that VA's duty to assist the Veteran has been satisfied. The identified medical records have been obtained and associated with the claims file to the extent possible. No VA examination has been provided for his claim of entitlement to service connection for an acquired psychiatric disorder. As set out above, the Board determines that new and material evidence has not been received to reopen that claim. As such, a new VA examination is not required. The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. ORDER New and material evidence has not been received to reopen the claims of entitlement to service connection for bilateral claw foot, and for an acquired psychiatric disorder, to include as secondary to bilateral claw foot. JOHN CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs