Citation Nr: 20003707 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-24 478 DATE: January 16, 2020 ORDER The claim for entitlement to service connection for a right index finger condition is dismissed. The claim for entitlement to service connection for right hand arthritis, to include as secondary to right index finger, is dismissed. New and material evidence having not been received, the request to reopen a previously disallowed claim of entitlement to service connection for chronic headaches is denied. FINDINGS OF FACT 1. The Veteran has failed to reply to the Board’s July 2019 clarification letter concerning a claim for service connection for a right index finger condition. This failure constitutes a withdrawal of the issues listed in the clarification letter. 2. The Veteran has failed to reply to the Board’s July 2019 clarification letter concerning a claim for service connection for right hand arthritis, to include as secondary to right index finger. This failure constitutes a withdrawal of the issues listed in the clarification letter. 3. In a May 2009 rating decision, the Veteran’s claim for service connection for chronic headaches was denied. Although informed of his appellate rights, the Veteran did not appeal the decision or submit new and material evidence within one year of that decision. 4. Evidence received since the May 2009 rating decision is cumulative or redundant of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for chronic headaches. CONCLUSIONS OF LAW 1. The criteria for dismissal of the issue of entitlement to service connection for right index finger have been met. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.204. 2. The criteria for dismissal of the issue of entitlement to service connection for right hand arthritis, to include secondary to right index finger, have been met. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.204. 3. The May 2009 rating decision that denied service connection for chronic headaches is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for chronic headaches. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 2003 to October 2008. This appeal to the Board of Veteran appeals arose from a March and November 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed notices of disagreement in July 2016 and January 2017. The RO issued statements of the case in March and May 2018. In April and June 2018, the Veteran filed his substantive appeals. 1. Entitlement to service connection for right index finger 2. Entitlement to service connection for right hand arthritis, to include as secondary to right index finger In a July 2019 letter sent to the Veteran and his representative, the Board requested clarification as to which issues the Veteran wished to appeal when filing his April 2019 VA Form 9. The Board informed the Veteran and his representative that a failure to reply to the correspondence within 60 days would allow the Board to consider the April 2019 VA Form 9 as a request to withdraw the appeal. As of January 1, 2020, neither the Veteran nor his representative has responded to the Board’s letter. The 60-day period expired on September 1, 2019. The Secretary can dismiss an appeal that fails to identify the specific determination with which the claimant disagrees. 38. U.S.C. §7105(d). The April 2019 VA Form 9 failed to identify the issues on appeal; thus, the Board was unable to determine the Veteran’s contentions as written in the Form 9. As there was no clarification sent in response to the Board’s letter, the issues are dismissed. 3. Whether new and material evidence has been submitted to reopen the finally disallowed claim of service connection for chronic headaches Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). A claimant has one year from notification of a decision by the agency of original jurisdiction (AOJ) to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 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 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the determination reached by the AOJ, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In the May 2009 decision, the AOJ denied entitlement to service connection for chronic headaches. In reaching its decision, the AOJ considered the Veteran’s service treatment records. It then determined that there existed no evidence of a current diagnosis of a chronic headache condition. The evidence received since the May 2009 denial includes a copy of the Veteran’s service treatment records, which show that the Veteran reported recurring headaches on his separation exam in July 2008. However, this information is not new. In its May 2009 rating decision, the AOJ listed the Veteran’s service treatment record covering the period of October 20, 2003 to October 19, 2008 as the evidence it used to decide the Veteran’s claim of service connection for chronic headaches. The Board notes that VA treatment records have also been received as part of the new claim. However, there is no indication in those records of any diagnosis of a chronic headache condition. This evidence, while new, is cumulative and redundant of evidence already of record and does not relate to an unestablished fact or raise a reasonable possibility of substantiating the Veteran’s claim for service connection. Therefore, the Board finds that the evidence received since the last final decision does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for chronic headaches. Consequently, the Veteran’s appeal must be denied. As new and material evidence to reopen the finally disallowed claim of entitlement to service connection has not been received, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zigan Danklou The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.