Citation Nr: 0809652 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 04-05 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for poliomyelitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran served on active duty from October 1950 to July 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 decisional letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This case was most recently before the Board in August 2006 and was remanded for additional development. This case has been advanced on the docket. FINDINGS OF FACT 1. By an unappealed rating decision dated in April 1996, the RO denied the veteran's application to reopen a claim of service connection for polio. 2. Evidence received subsequent to the April 1996 RO decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim of service connection for polio. CONCLUSIONS OF LAW 1. The April 1996 RO decision that denied the veteran's application to reopen a claim of service connection for polio is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2005). 2. Evidence received since the April 1996 RO decision is not new and material, and the veteran's claim of service connection for polio is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in August 2003, December 2003, May 2004, October 2004, March 2005, June 2006, and September 2006, the veteran was informed of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. The VCAA letters informed the veteran that he should submit any medical evidence pertinent to the claim. The Board notes that the September 2006 letter contains the information required by Kent v. Nicholson, 20 Vet. App. 1 (2006). In June 2006 the veteran received notice regarding the assignment of a disability rating and/or effective date of an award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While complete VCAA notice was not provided to the veteran prior to the initial adjudication, the claim was readjudicated after he received all critical notice, and he has had an opportunity to respond (see October 2007 supplemental statement of the case). The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Duty to Assist Most of the veteran's service medical records, including a separation examination, are not associated with the claims file. A September 2002 response from the NPRC indicated that the veteran's records were possibly destroyed in a fire in 1973. The RO has also specifically requested, to no avail, the veteran's records of treatment purportedly received at Sheppard AFB, Texas, in 1951. In light of the absence of service medical records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board has considered whether the veteran should be scheduled for a VA examination with a medical opinion regarding a possible relationship between the disability on appeal and the veteran's military service. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds, however, that such an examination is not necessary to decide this claim as the evidence of record contains sufficient competent medical evidence to decide the claim. The veteran has not identified any pertinent, obtainable evidence that remains outstanding. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, a final VA rating decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105(c). However, under 38 U.S.C.A. § 5108, "[i]f 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 C.F.R. § 3.156(a), which defines "new and material evidence", was revised, effective August 29, 2001. The instant claim to reopen was filed after that date (in March 2002), and the new definition applies. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A February 1965 rating decision denied (essentially) service connection for residuals of polio. By rating decisions in October 1981 and April 1996, the RO denied the veteran's application to reopen a claim of service connection for polio. The veteran did not appeal the April 1996 rating decision, and it became final. The veteran subsequently filed an application to reopen the claim of service connection for polio in March 2002. In a decisional letter dated in September 2002, the RO again denied the veteran's petition to reopen the claim, and the present appeal ensued. The September 2002 RO decision, and the others before it, denied service connection for polio on the basis that there was no evidence, either during service or subsequent to service, that the veteran had ever had polio or any residuals of polio. The evidence added to the claims file subsequent to the September 2002 RO denial does not raise a reasonable possibility of substantiating this claim. Despite voluminous medical evidence, the record is still absent for any competent clinical evidence that the veteran has or has ever had polio. In short, the Board finds that the evidence is not new and material under 38 C.F.R. § 3.156. As such, the veteran's claim of entitlement to service connection for polio is not reopened. The Board does not doubt the sincerity of the veteran's opinion regarding this issue. In this regard, the Board has reviewed the veteran's numerous statements submitted in support of his claim. A layperson, however, is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal to reopen a claim of entitlement to service connection for polio is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs