Citation Nr: 1829482 Decision Date: 06/08/18 Archive Date: 06/27/18 DOCKET NO. 15-00 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of the upper extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army Reserve from July 1979 to October 1979, July 2003 to October 2003, and November 2004 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the Veteran's VA Form 9, the Veteran requested a Board hearing. However, the Veteran did not show up to the scheduled September 2015 hearing. There is no indication in the record that the Veteran has shown good cause to miss the hearing. Additionally, the Veteran's representative subsequently submitted arguments on his behalf. Neither the Veteran nor his representative has requested the hearing be rescheduled. The Board notes there were other issues decided in the June 2014 rating decision. However, the Veteran only filed a notice of disagreement and perfected an appeal for the issue presently before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. In a June 2010 rating decision, the RO denied a claim for service connection for peripheral neuropathy of the upper extremities. The Veteran was notified of the June 2010 rating decision but did not appeal that determination or submit new and material evidence within one year of such notification. 2. The evidence received since the June 2010 rating decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record or does not relate to an unestablished fact necessary to substantiate the underlying service connection claim for peripheral neuropathy of the upper extremities. CONCLUSIONS OF LAW 1. The June 2010 rating decision, which denied service connection for peripheral neuropathy of the upper extremities, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received subsequent to the June 2010 rating decision is not new and material, and the claim for service connection for peripheral neuropathy of the upper extremities is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In general, rating decisions that are not timely appealed or for which new and material evidence is not received within one year of the rating decision are final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c) (2012)). See also Barnett v. Brown, 83 F.3d 1380 (Fed Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence has been submitted to reopen the claim for service connection before proceeding to adjudicate the underlying merits. If the Board finds that no new and material evidence has been offered, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156 (a). A finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade v. Shinseki, 24 Vet. App. 110, 119 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. at 118-19. There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim. Id. at 117. In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary of VA to consider the patently incredible to be credible"). In this case, the RO previously considered and denied the Veteran's claim for service connection for peripheral neuropathy of the upper extremities in a June 2010 rating decision. The evidence of record at that time included the Veteran's service treatment records, VA medical records, private medical records, and lay statements. In the decision, the RO observed that the Veteran's service treatment records were negative for any complaints, treatment, or diagnosis related to his upper extremities and that the evidence did not establish that the peripheral neuropathy of the upper extremities manifested to a compensable degree within one year of his separation from service. Thus, the RO concluded that the evidence at that time did not show that the Veteran's peripheral neuropathy of the upper extremities either occurred in or was caused by service. The Veteran was notified of the June 2010 rating decision and his appellate rights; however, he did not submit a notice of disagreement (NOD) or new and material evidence with one year of the notification. For these reasons, the Board concludes that the June 2010 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103. The evidence received since the June 2010 rating decision includes VA medical records, private medical records, and lay statements. With respect to the VA medical records and private treatment records, the Board notes that the majority of that evidence does not pertain to the Veteran's peripheral neuropathy of the upper extremities. To the extent that they do reference peripheral neuropathy of the upper extremities, the Board finds that such evidence is cumulative in that the documents reiterate that the Veteran has a current disability which are facts already acknowledged in the June 2010 rating decision. Thus, the additional records are cumulative and redundant of evidence previously of record, do not relate to an unestablished fact necessary to substantiate the claim, and do not raise a reasonable possibility of substantiating the claim. The Board notes the additional evidence includes copies of certain service records, including a medical evaluation report. However, after review, the Board finds the RO considered those records in the June 2010 rating decision. Under 38 C.F.R. §3.156(a), evidence which is merely duplicative of evidence already in the record cannot be considered "new" for purposes of reopening a claim. Thus, that evidence is not new and material and cannot serve as a basis to reopen the claim. With respect to the lay statements, the assertions are cumulative and redundant in that they reference the Veteran's disorder, and the assertions were considered in the June 2010 rating decision. Therefore, the lay statements do not constitute new and material evidence. Significantly, the evidence missing at the time of the June 2010 rating decision continues to be absent. Specifically, there remains no evidence showing the Veteran's peripheral neuropathy of the upper extremities manifested in service or within one year thereafter or is otherwise causally or etiologically related to his military service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim for service connection for peripheral neuropathy of the upper extremities. ORDER New and material evidence not having been submitted, the claim for service connection for peripheral neuropathy of the upper extremities is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs