Citation Nr: 1645873	
Decision Date: 12/07/16    Archive Date: 12/19/16

DOCKET NO.  10-21 957	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio


THE ISSUE

Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left foot disorder other than a scar.


REPRESENTATION

Appellant represented by: Disabled American Veterans 


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The appellant is a veteran (the Veteran) who had active duty service from September 1978 to March 1984.   

This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the RO in Cleveland, Ohio.

In August 2014, the Board remanded this appeal to fulfill the Veteran's request for a Board hearing.  In July 2016, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law, Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board.  See 38 C.F.R. § 20.700(e) (2016).  A transcript of the hearing is associated with the claims file.

The Veteran submitted additional medical evidence after the most recent adjudication of the claim.  In November 2016, the Veteran waived his right to have the claim remanded to the RO for initial consideration of this evidence.  


FINDINGS OF FACT

1.  In a May 2006 decision, VA denied service connection for a left foot disorder other than a scar; at the time of that decision, the evidence did not substantiate a nexus between any current left disability other than a scar and an injury or disease in service or a service-connected disability.  

2.  The evidence received since the May 2006 decision does not address the sole unestablished fact at the time of the May 2006 decision in a way that raises a reasonable possibility of substantiating the claim.  



CONCLUSION OF LAW

The criteria for reopening the claim of entitlement to service connection for a left foot disorder other than a scar have not been met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability.  38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998).  

In a May 2006 rating decision, the RO granted service connection for a burn scar of the left foot and ankle and denied service connection for a left foot disability other than the burn scar.  The Veteran submitted a VA Form 21-526 (Veteran's Application for Compensation and/or Pension) in June 2006 specifying that he was seeking service connection for "ASTEMA, BOTH FEET," for "BOTH FEET," and for "(L) EYE."  The accompanying letter from the Veteran's representative indicated he was seeking service connection for a bilateral foot condition, a left eye condition, headaches, and sinusitis.  Neither correspondence acknowledged or referred to the May 2006 decision.  

The Veteran initiated an appeal of the May 2006 decision by submission of a Notice of Disagreement in July 2006.  However, he only specified the effective date for the grant of service connection for the left foot burn scar.  He did not express disagreement with the denial of service connection for a left foot disorder other than a scar.  Moreover, he did not perfect the appeal following the RO's dispatch of the Statement of the Case.  See 38 C.F.R. §§ 20.200, 20.202 (2016).  

The May 2006 rating decision is the last disallowance of the claim on any basis.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996), overruled on another basis by Hodge v. West 155 F.3d. 1356 (Fed. Cir. 1998) (the Board must review all evidence submitted by or on behalf of a claimant since the last disallowance on any basis to determine whether a claim must be reopened).  

VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  New evidence is defined as evidence not previously submitted to agency decision makers and material evidence is 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 final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it 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).  

To reopen a claim, it is not required that new and material evidence be received as to each previously unproven element of a claim.  Where a prior denial was based on lack of current disability and nexus, newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination.  See Shade v. Shinseki, 24 Vet. App. 100 (2010).

For purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

At the time of the May 2006 rating decision, the evidence established Shedden element (1), i.e., a left foot disability other than a scar.  The evidence of record included diagnoses of a left plantar fibroma and left plantar fasciitis (VBMS record 03/14/2006).  

The evidence substantiated Shedden element (2), in that there was a confirmed second-degree burn injury of the left ankle and foot in service in July 1980, as well as a laceration to the lower left leg in November 1980, and a twisted left ankle in December 1980.  

The evidence also substantiated Wallin element (2) in that service connection was in effect for a burn scar of the left foot.  There were no other service-connected disabilities at that time, and there are none currently.  

However, the evidence did not substantiate Shedden or Wallin element (3), in that there was no relationship established by an approximate balance of the evidence between any post-service left foot disability other than a scar and service, or the service-connected disability.  While the record included the Veteran's assertions that he had additional disability of the left foot related either to in-service injury or to the service-connected scar, the RO concluded that the evidence weighed against the claim.  

Evidence received since the May 2006 decision includes additional VA treatment records and additional statements from the Veteran and his representative.

While the VA treatment records were not of record at the time of the May 2006 decision, those records are not new and material for purposes of reopening the claim, as they merely establish ongoing treatment for left and right foot issues, including multiple post-service surgeries to remove fibromas.  These records do not contain a medical opinion or findings pertinent to the question of whether any current left foot disorder is etiologically related to service, or to a service-connected disability.  

The Veteran's written statements and testimony simply reiterate assertions previously made-that his foot disorders are caused by his service-connected scar or arose out of the same in-service injury.  While the credibility of these assertions is presumed, they are cumulative and redundant of evidence previously considered and they do not alter the essential evidentiary basis of the claim. 

Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for a left foot disorder other than a scar has not been received.  As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

Duties to Notify and Assist

VA's duty to notify was satisfied by a letter in December 2008.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran.  The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained.  

The RO has also obtained a thorough medical examination regarding the claim as well as a medical opinion.  The Veteran has made no specific allegations as to the inadequacy of any opinion.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  

As noted above, this appeal involves a remand by the Board for additional evidentiary development.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In this case, the RO substantially complied with the Board's remand instructions by scheduling a Board hearing.  

When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2016).  The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.  

Here, during the Board hearing, the Veteran was informed as to the basis for the RO's denial of his claim and he was informed of the information and evidence necessary to substantiate the claim.  He was specifically informed of the need for medical evidence relating a current foot disorder to service (transcript at page 5-6).  Moreover, the file was left open for 60 days in order to supplement the record.  Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103.


ORDER

Reopening of the claim of entitlement to service connection for a left foot disorder other than a scar is denied.  



____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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