Citation Nr: 18142108 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 15-04 827 DATE: October 12, 2018 ORDER The application to reopen a claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 (2012) for additional disabilities involving the bilateral leg (phlebitis), lumbar spine, and gastrointestinal system due to treatment by the Department of Veterans Affairs (VA) is denied. FINDINGS OF FACT 1. The Veteran did not appeal the April 2009 rating decision denying entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities involving the bilateral leg (phlebitis), lumbar spine, and gastrointestinal system due to treatment by VA after being notified of appellate rights. 2. Evidence received since the April 2009 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities involving the bilateral leg (phlebitis), lumbar spine, and gastrointestinal system due to treatment by VA. CONCLUSION OF LAW The April 2009 rating decision is final. New and material evidence has not been received to reopen the claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities involving the bilateral leg (phlebitis), lumbar spine, and gastrointestinal system due to treatment by VA. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to January 1977. In November 2017, the Veteran provided personal testimony in Travel Board hearing before the undersigned Veterans Law Judge at the Regional Office in Phoenix, Arizona. A copy of the hearing transcript is associated with the claims file. The Veteran had made an informal claim in a July 2010 phone call to VA for a bowel or digestive condition as a result of his service-connected disabilities. See VBMS entry with document type, “VA 21-0820 Report of General Information,” receipt date 07/20/2010. During the November 2017 Travel Board hearing, the Veteran and his representative indicated that they were waiting for the VA to decide on the claim for diverticulitis. The Veteran testified that he had a hole in his bowel. The claim for service connection for a bowel or digestive disability as secondary to service-connected disabilities has not been adjudicated. This informal claim was submitted prior to the requirement of a formal claim being filed. Therefore, the issue of entitlement to service connection for diverticulitis, to include as secondary to service-connected disabilities has been raised. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and is therefore referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Veteran’s representative is encouraged to follow up on this to ensure that the AOJ adjudicates claim. Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities involving the bilateral leg (phlebitis), lumbar spine, and gastrointestinal system due to treatment by the Department of Veteran Affairs (VA). Prior unappealed decisions of the Regional Office (RO) are final. 38 U.S.C. §§ 7105(c); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities involving the bilateral leg (phlebitis), lumbar spine, and gastrointestinal system due to treatment by VA, was denied in an April 2009 rating decision. This rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The April 2009 rating decision denied entitlement to compensation under 38 U.S.C. § 1151 because there was no evidence that the April 2004 procedure performed at VA caused the Veteran’s bilateral leg, lumbar spine, and/or digestive disabilities. During the November 2017 Travel Board hearing, the Veteran testified that he had surgery in April 2004 at Tucson VA for his diverticulitis. The Veteran indicated that he developed three natural hernias and a weakening of his abdominal wall following the surgery. When asked if he was alleging there was negligence that occurred during the April 2004 surgery, the Veteran answered, “No. It’s just what I want, for the VA to recognize it was done, and what they done too. And now it’s been reversed back to a normal person.” The Veteran also testified that he was better after the surgery because he was no longer in any pain. The Veteran’s representative indicated that they were waiting for VA to decide on the claim for diverticulitis. VA treatment records have been associated since the April 2009 rating decision, which reflect treatment for the Veteran’s leg, lumbar spine, and digestive issues. However, the additional evidence, including the medical evidence and hearing testimony, is not material, as it does not show that the Veteran’s leg, lumbar spine, and/or digestive disabilities were caused by or a result of VA treatment, including the April 2004 procedure. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities involving the bilateral leg (phlebitis), lumbar spine, and gastrointestinal system due to treatment by VA. Therefore, the application to reopen the previously-denied claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel