Citation Nr: 0003411 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-28 940 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of lacerations of the 4th and 5th fingers, left hand. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a scar, residuals of a herniorrhaphy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to February 1946, and from March 1950 to December 1951. An October 1946 rating action previously denied the veteran's claim for service connection for residuals of left hand lacerations of the 4th and 5th fingers, and a February 1952 rating action previously denied the veteran's claim for service connection for residuals of a herniorrhaphy. This appeal arises from a May 1997 rating action in which the RO found that new and material evidence had not been submitted to reopen claims for service connection for residuals of left hand lacerations of the 4th and 5th fingers and for service connection for residuals of a herniorrhaphy. The veteran perfected a timely an appeal as to both issues. In August 1999, the Board remanded both issues for consideration of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), which clarified the standard for considering whether new and material evidence has been presented to reopen a claim, and Elkins v. West, 12 Vet. App. 209 (1999), which explained the process for handling petitions to reopen. As the RO continued the denial of the claims, the matters have been returned to the Board for further appellate consideration. In a statement dated in September 1997, the veteran requested a hearing before an RO hearing officer. In a subsequent statement dated in February 1998, the veteran canceled his hearing request, and has not requested rescheduling of such hearing. Therefore, the Board will render its decision on the basis of the current evidence of record. FINDINGS OF FACT 1. In a rating action of October 1946, the RO denied service connection for residuals of left hand lacerations of the 4th and 5th fingers on the basis that the condition was not incurred or aggravated by active service; although notified of that decision and of his appellate rights in a letter from the RO dated in that same month, the veteran did not file an appeal. 2. New evidence associated with the claims file since the October 1946 denial indicates that the veteran currently has residuals of left hand lacerations of the 4th and 5th fingers. 3. In a rating action of February 1952, the RO denied service connection for residuals of a herniorrhaphy on the basis that the condition was not incurred or aggravated by active service; although notified of that decision and of his appellate rights in a letter from the RO dated in that same month, the veteran did not file an appeal. 4. No new evidence has been associated with the claims file since the February 1952 rating action denying service connection for scar, residuals of a herniorrhaphy, that is probative of the veteran's claim. CONCLUSIONS OF LAW 1. The RO's unappealed October 1946 rating action denying service connection for has residuals of left hand lacerations of the 4th and 5th fingers, and February 1952 rating action denying service connection for scar, residuals of a herniorrhaphy, are final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. New and material evidence to reopen the claim for service connection for residuals of left-hand lacerations of the 4th and 5th fingers has been presented; the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. New and material evidence to reopen the claim for service connection for scar, residuals of a herniorrhaphy has not been presented. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background In October 1946, the RO issued a rating action that denied service connection for residuals of left-hand lacerations of the 4th and 5th fingers. In February 1952, the issued a rating action which denied service connection for scar, residuals of herniorrhaphy. The RO's decision in both cases was based on lack of evidence of incurrence or aggravation of either disorder in service. The veteran did not timely appeal either decision. The service medical records for both periods of the veteran's active service do not reflect any complaints, symptomatology, or treatment for laceration to the left hand or a hernia. A report of VA hospitalization covering the period of September to October 1947 reveals that the veteran underwent surgery for left inguinal hernia. In letter received in July 1996 at the RO, the veteran stated that he cut his left hand in service while cleaning tables at the canteen. He submitted a photograph showing a bandage on his left hand that he alleged was taken 3 days after his discharge from service. Private treatment records dated from May 1953 to December 1996 reveal that the veteran received treatment for pain in his left hand of the 4th and 5th fingers. A letter of medical treatment was received dated in December 1996 was received from T. J. Craparo, M.D. Dr. Craparo stated that the veteran continued to experience painful paresthesis of the 4th and 5th fingers of the left hand due to laceration. In a May 1997 rating action, the RO found that new and material evidence had not been submitted to reopen claims for service connection for residuals of left hand lacerations of the 4th and 5th fingers and service connection for residuals of a herniorrhaphy. The veteran timely appealed the rating action. As noted above, in August 1999, the Board remanded both issues to the RO for consideration in light of the recently decided cases, to include Hodge. The RO continued to determine that new and material evidence had not been submitted for either issue. II. Analysis Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Each disabling condition shown by a veteran's service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 1991). Satisfactory lay or other evidence that injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation during active service. 38 C.F.R. § 3.304 (1999). Additionally, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As noted above, in an October 1946 rating action, the RO denied service connection for residuals of left hand lacerations of the 4th and 5th fingers and that in a February 1952 rating action, the RO denied service connection for scar, residuals of herniorrhaphy. The veteran was notified of both determinations and did not file a notice of disagreement within one year of the notification. Absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the denial of an appellant's claim and absent the filing of a substantive appeal within the remainder of that year or within 60 days of the mailing of the statement of the case, whichever is later, a rating determination is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1999). If, however, 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. 38 U.S.C.A. § 5108 (West 1991). The question of whether new and material evidence has been presented to reopen a previously and finally disallowed claim is but one part of a three-part analysis of a petition to reopen a claim. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc). First, VA must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Id. Second, if VA determines that the evidence is "new and material," it must reopen the claim and determine whether it is well grounded. Winters, supra. Third, if the claim is well grounded, VA must evaluate the merits of the claim after ensuring that the duty to assist has been fulfilled. Id. "New" evidence is evidence that was not of record at the time of the last final disallowance, and not merely cumulative or redundant of other evidence of record. "Material" evidence is evidence that is relevant and probative of the issue at hand, and which, by itself or in connection with the evidence previously assembled, is so significant it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a); Cox v. Brown, 5 Vet. App. 95, 98 (1993). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by a claimant since the previously disallowed claim in order to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, 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). With regard to the laceration of the left hand, the evidence of record in October 1946 showed no treatment of diagnoses of a left-hand laceration. The service medical records were negative for complaints, symptomatology, or treatment for laceration to the left hand. Evidence added to the record since October 1946 includes, a photograph of injury to the left hand purported have been taken shortly after service, private outpatient records dated from May 1993 to December 1996, and a letter of treatment dated in December 1996 that showed current treatment for laceration of the 4th and 5th fingers of the left hand. The Board finds that the additional evidence added to the record since 1946 is so significant that it must be considered whether the veteran's claim for residuals of lacerations to left hand of the 4th and 5th fingers is well- grounded. Accordingly, the criteria to reopen the claim are met. With regard to the herniorrhaphy, the evidence of record in February 1952 revealed that the veteran underwent surgery for left inguinal hernia in September 1947. As such, this surgery took place more than one year following the veteran's separation from his first period of active service. Service medical records for the veteran's second period of active service are negative for any complaints, symptomatology, or treatment of a herniorrhaphy. The veteran has not submitted any evidence of treatment or diagnosis of a hernia since the RO's initial decision in February 1952. As such, the criteria for reopening his claim for service connection for residuals of scar, herniorrhaphy, are not met. ORDER 1. As new and material evidence with respect to the claim for service connection for residuals of left hand lacerations of the 4th and 5th fingers has been submitted, the claim is reopened, and the appeal as to that issue is granted. 2. As new and material evidence with respect to the claim for service connection for scar, residuals of herniorrhaphy, has not been presented, that claim is not reopened, and the appeal as to that issue is denied. REMAND Inasmuch as the Board has reopened the claim for service connection for residuals of left hand lacerations of the 4th and 5th fingers, the next questions to be considered are whether the claim is well-grounded, and, if so, whether the evidence presents a new factual basis for allowance of the claim. See Elkins, Winters, supra. However, because the RO has not yet considered these questions, the Board finds that they should do so, in the first instance, to avoid any prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, this matter is hereby REMANDED to the RO for the following action: 1. After completing any action deemed warranted by the record, the RO should adjudicate the questions of whether the claim for service connection for residuals of left hand lacerations of the 4th and 5th fingers has been presented, and, if so, whether the evidence presents a new factual basis for allowance of the claim. 2. Unless the benefits are granted to the veteran's satisfaction, he and his representative must be afforded an appropriate supplemental statement of the case, and given the opportunity to respond before the matter is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals