Citation Nr: 21066181 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-44 479 DATE: October 28, 2021 ORDER The application to reopen the previously denied claim for entitlement to service connection for varicose veins of the left lower extremity is denied. The application to reopen the previously denied claim for entitlement to service connection for varicose veins of the right lower extremity is denied. FINDINGS OF FACT 1. The appellant's claim for service connection for varicose veins of the left and right lower extremities was initially denied in a September 1977 rating decision because the appellant failed to respond to VA's request for additional information regarding the claim. The appellant was notified of this decision and his appellate rights in an October 1977 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. 2. The appellant's request to reopen the previously denied claims for varicose veins was received in April 1988. The claim for service connection was reopened but denied on the merits in a December 1989 rating decision because the evidence did not show the appellant's disability at least as likely as not began during active service or was otherwise related to his active service. This decision was appealed in a February 1990 notice of disagreement. In March 1990, a statement of the case and supplemental statement of the case were issued, continuing the previous denial of service connection for varicose veins on the merits. The appellant submitted a substantive appeal, requesting a hearing before the Board of Veterans' Appeals in March 1990. A second supplemental statement of the case was issued in April 1991. A third supplemental statement of the case was issued in September 1992. In August 1992 and February 1993, additional hearing officer decisions were issued addressing this claim. In February 1993, prior to the Board of Veterans' Appeals issuing a decision on this claim, the appellant withdrew his appeal of the previous denial of service connection for varicose veins in the left and right lower extremity. 3. Evidence received since the final December 1989 rating decision is not related to an unestablished fact necessary to substantiate the claim for service connection for varicose veins of the left and right lower extremities. CONCLUSIONS OF LAW 1. The September 1977 rating decision denying entitlement to service connection for varicose veins of the left and right lower extremities is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The December 1989 rating decision denying entitlement to service connection for varicose veins of the left and right lower extremities is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has not been received to warrant the reopening of the previously denied claims for service connection for varicose veins of the left and right lower extremities. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from September 1953 to August 1956 and from October 1956 to November 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the appellant's application to reopen the previously denied claims for service connection for varicose veins of the lower extremities. This decision was appealed in a notice of disagreement (NOD) received by VA in February 2013. A Statement of the Case (SOC) was issued by VA in October 2015. VA received the appellant's Substantive Appeal (Form 9) in November 2015, perfecting the appeal. VA previously remanded this claim for further development in decisions issued in June 2017, June 2020, March 2021, and May 2021. Supplemental Statements of the Case (SSOC) were issued by VA in April 2020, January 2021, March 2021, and August 2021. As a preliminary matter, the Board must address the lengthy delay in making a final decision on these claims, with the claim being previously remanded 4 different times. The RO's January 2013 rating decision on this issue appears to have identified a prior denial of this claim having been issued by VA on November 1, 1957, which was the day the appellant separated from active service. This supposed rating decision has never been part of the appellant's electronic claims folder and the basis for that supposed decision was unknown. As such, the Board previously remanded this claim 4 different times requesting the RO provide any indication of what basis this supposed November 1957 rating decision denying service connection for varicose veins was based upon. Since the last Board decision, the RO has determined that the mention of a November 1, 1957 rating decision previously denying these claims was made entirely in error. In support of this determination, the RO noted that the oldest evidence of record in the claims folder regarding an application for disability benefits, was received by VA in June 1977. The RO determined that there was some evidence of the appellant submitting supporting documentation for entitlement to education benefits in 1958, but that there was no evidence of a claim for service connection for varicose veins. Considering this, the Board finds it is clear that the reference to a November 1, 1957 denial of service connection for varicose veins of the lower extremities, which was mentioned in the January 2013 rating decision, and which caused the Board to remand this claim 4 times, was entirely in error. The first denial of these claims occurred in September 1977 after the appellant failed to respond to a request for evidence in support of his claim. As this claim was previously considered on the merits in the December 1989 rating decision, the Board finds that, other than a lengthy delay in the issuance of a final decision on these issues, there has been no prejudicial impact upon the appellant due to this error by the RO, which could be corrected. The final adjudication of this appeal was not impacted in any way by the mistake, as the issue was otherwise previously considered on the merits. As the RO provided the necessary information and made the determination that it did, the Board finds that RO has substantially complied with the Board's prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection 1. The claim to reopen the previously denied claim for entitlement to service connection for varicose veins of the left lower extremity 2. The claim to reopen the previously denied claim for entitlement to service connection for varicose veins of the right lower extremity The appellant seeks to reopen his previously denied claims for service connection for varicose veins of the left and right lower extremities. These claims were previously denied on the merits in a final December 1989 rating decision. After a review of the evidence of record, with particular attention on evidence received since the last final denial of this claim, the Board finds that the the evidence received since the prior final denial of this claim is not new and material, as it does not go towards an unestablished fact of the claim, or is cumulative or redundant of other evidence already of record. In general, decisions of the RO and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (noting the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Typically, a new theory of entitlement alone does not constitute new and material evidence and will not be sufficient to reopen a previously denied claim of service connection under 38 C.F.R. § 3.156(a). See also Velez v. Shinseki, 23 Vet. App. 199, 205-06 (2009) (explaining that separate theories do not constitute separate claims and a previously denied claim may be reopened on an alternate theory only if new and material evidence is presented). The appellant's claim for service connection for varicose veins of the left and right lower extremities was initially denied in a September 1977 rating decision because the appellant failed to respond to VA's request for additional information regarding the claim. The appellant was notified of this decision and his appellate rights in an October 1977 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence relevant to this claim was not received. Considering this, the Board finds that the September 1977 rating decision is final. The appellant's claim to reopen the previously denied claims for varicose veins was received in April 1988. The claim for service connection was reopened but denied on the merits in a December 1989 rating decision because the RO determined that the evidence did not show the appellant's disability at least as likely as not began during active service or was otherwise related to any disease or injury incurred during his active service. Re-opening of the previously denied claims appears to have been granted based on the appellant's testimony that he developed varicose veins while in active service, which at the time, was evidence that was new and material. This decision was appealed in a February 1990 NOD. In March 1990, a SOC and SSOC were issued, continuing the previous denial of service connection for varicose veins. The appellant submitted a Form 9, requesting a hearing before the Board of Veterans' Appeals in March 1990. A second SSOC was issued in April 1991. A third SSOC was issued in September 1992. In August 1992 and February 1993, additional hearing officer decisions were issued addressing this claim, although these appeared to be directed more at a separate claim for nonservice-connected pension. In February 1993, prior to the Board of Veterans' Appeals issuing a decision on this claim, the appellant withdrew his appeal of the previous denial of service connection for varicose veins in the left and right lower extremities. As the appeal was withdrawn before a final decision could be rendered on the issues, the Board finds that the December 1989 rating decision denying entitlement to service connection for varicose veins is final. After a review of the evidence of record, the Board finds that the received since the December 1989 rating decision is either cumulative or not related to an unestablished fact necessary to substantiate the claim for service connection for varicose veins of the left and right lower extremities. In reaching this conclusion, the Board notes that while new evidence has been received in the form of additional clinical records showing continued treatment for varicose veins in the lower extremities, and further statements and assertions from the appellant that his varicose veins developed while he was in active service, the Board finds that this evidence is not at least as likely as not material. Evidence of continuing treatment does not help establish facts necessary for substantiating the claim for service connection, as they do not indicate that the appellant's disability was incurred during, or is otherwise related to, his period of active service. These records merely show that his current disability is still present, which was not the basis for the denial of his original or reopened claims in September 1977 and December 1989. Rather, these clinical records are essentially cumulative in that they show evidence of a current disability, an element which was previously established. Whether the appellant has a current disability was not in dispute at the time of the most recent final denial of this claim, and evidence the appellant had varicose veins was already present at the time of the December 1989 prior final denial. As such, the Board finds that evidence of continuing treatment cumulative and is not material. The appellant's continued assertions that his varicose veins developed during active service are also not material, because they are cumulative of evidence that was already of record. The appellant's assertions that his varicose veins were present while he was on active service was of record and addressed in the SSOC's issued while his appeal was previously pending. He had provided testimony of these facts at the time his claim was previously being considered at various hearings with VA adjudicating officers. As such, the Board finds that the current additional assertions directly from the appellant regarding the onset date of his varicose veins are not material as they are cumulative of the evidence that was previously of record and considered at the time of the prior denial. The Board notes that all of the appellant's service treatment records and most of his service personnel records appear to have been destroyed in the 1973 fire at the National Personnel Records Center. Efforts to retrieve these records have been made in multiple different decades, and further attempts to obtain them have been deemed futile. In VA's most recent attempt to obtain these records, the appellant's separation orders were obtained which show that he was being assigned to Fort Buchanan in Puerto Rico for purposes of completing his discharge from active service due to completion of his term of service. It is unclear whether these records were previously included in the appellant's claims folder at the time of the previous final decision on his claim. As such, the Board notes that these records at least as likely as not constitute new service department records that were not associated with the claims file when VA previously decided the claim. In reviewing these records, the Board has considered the implications of 38 C.F.R. § 3.156(c); however, the Board finds that these records are not relevant to the appellant's claim, as they do not make any fact of consequence more or less likely to be true. The date of the appellant's separation from active service was never in dispute and had not been an issue in deciding whether the appellant was entitled to service connection. As the evidence is not relevant, the Board finds that re-adjudication under 38 C.F.R. § 3.156(c) is not warranted. Further, because the evidence is not relevant to a fact in dispute in relation to the underlying claim, the Board also finds that it is not material for purposes of reopening these claims. Considering all this, the Board concludes that the criteria to reopen the previously denied claims for service connection are not met because the preponderance of the evidence is against any of the new evidence of record being material. The new evidence is either cumulative, redundant, or irrelevant to the outstanding questions related to this claim. As such, the claims to reopen the previously denied claims for service connection for varicose veins of the left and right lower extremities are denied. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 C.F.R. §§ 3.102, 3.156. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, Counsel 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.