Citation Nr: 0006234 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-12 138A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for disability of the hands and legs, manifested by cramps. 2. Entitlement to service connection for disability of the feet, manifested by cramps. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from June 1963 to May 1968, from October 1968 to December 1970, from January 1971 to October 1976, and from October 1982 to December 1993. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. After reviewing the record, the Board is of the opinion that the issue of entitlement to service connection for disability of the feet, manifested by cramps, requires further development. Accordingly, it is the subject of a remand at the end of this decision. FINDINGS OF FACT 1. A Notice of Disagreement was not timely received with respect to the RO's decision in March 1994, which denied entitlement to service connection for disability of the legs and hands, manifested by cramps. 2. Evidence received since the RO's decision in March 1994 is cumulative or duplicative of that on file at the time of the decision or is not so significant, by itself or in connection with evidence previously assembled, that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The RO's March 1994 decision which denied entitlement to service connection for disability of the hands and legs, manifested by cramps, is final. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.1103 (1999). 2. The evidence received since the RO's March 1994 decision is not new and material to reopen the veteran's claim of entitlement to service connection for disability of the hands and legs manifested by cramps. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, establish that a particular disease or injury resulting in disability was incurred coincident with service in the Armed Forces, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Even if the disease at issue is diagnosed after the veteran's discharge service, service connection may still be granted, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In March 1994, the RO denied the veteran's claims of entitlement to service connection for cramps of the hands and of the legs. The veteran was notified of that decision, as well as his appellate rights; however, he did not submit a Notice of Disagreement with which to initiate an appeal. Accordingly, that decision became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). Evidence on file in March 1994 consisted of the veteran's service medical records. From September 1985 to the end of his service, he complained of cramps in various muscles, including his legs. During his June 1993 retirement examination, he also complained of cramps in his hands. Despite those complaints, no disability was identified, and the etiology of his cramps was not determined. Therefore, the RO denied entitlement to service connection. Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 1991). The exception to this rule is 38 U.S.C.A. § 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. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must perform a three step analysis. First, it must determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, immediately upon reopening the claim, the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See, Elkins v. West, 12 Vet. App. 209 (1999). "New and material evidence" is evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Evidence added to the record since the March 1994 rating action includes outpatient treatment records, dated from June 1994 to June 1997, from a military medical facility and from VA, and reports of VA examinations, performed in March 1996 and May 1998. Although the additional evidence had not been submitted to agency decision makers previously, the additional evidence is essentially cumulative in nature. It does not cure the deficiencies in the evidence which existed in March 1994, i.e., the etiology of the veteran's hand and leg cramps remains undetermined and no associated disability is identified. Certainly, none of the examiners or health care providers relate those complaints to any disease or injury sustained in service. Numerous clinical examinations, radiographic studies, a bone scan, and electromyographic studies have been negative for any evidence in this regard. The only reports of a relationship between service and the cramps in the veteran's hands and legs remain those offered by the veteran. While he is qualified to report symptoms that are capable of lay observation, he is not qualified to render opinions which require medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Accordingly, the Board is of the opinion that the additional evidence, either by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim. ORDER New and material evidence not having been submitted, the request to reopen the claim of entitlement to service connection for disability of the hands and legs, manifested by cramps, is denied. REMAND The veteran also seeks entitlement to service connection for disability of the feet, manifested by cramps. In June 1998, the RO determined that the veteran had not submitted new and material evidence with which to reopen that claim. Although the veteran submitted a timely Notice of Disagreement and perfected an appeal with respect to that issue, the Board notes that prior to June 1998, the RO had not adjudicated service connection for that disability on the merits. Accordingly, there exists no prior final determination as to that matter, and it should have been reviewed on a de novo basis. In this regard, it should be noted that the Statement of the Case (SOC) and the Supplemental Statement of the Case (SSOC), do not contain the law and regulations applicable to a de novo review of a claim for service connection. In order to afford the veteran every due process consideration, the case is remanded for the following actions: After conducting a de novo review of the record and after performing any necessary development, the RO adjudicate the issue of entitlement to service connection for disability of the feet, manifested by cramps. If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case (SSOC). The SSOC should include, but not be limited to, the laws and regulations applicable to an original claim of service connection. The veteran and his representative should then be afforded the appropriate opportunity to respond. Thereafter, if otherwise in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The veteran need take no action until he is notified. It must be emphasized, however, that he does have the right to submit any additional evidence and/or argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-373 (1999). U. R. POWELL Member, Board of Veterans' Appeals