Citation Nr: 0810928 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 03-35 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for a lump on the neck and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from July 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, wherein the RO determined, in part, that new and material evidence had not been received to reopen a previously denied claim for service connection for a disability manifested by a lump behind the neck. The veteran timely appealed the RO's May 2003 rating action to the Board. In April 2005, the veteran failed to appear at a hearing before a Veterans Law Judge at the Columbia, South Carolina RO (i.e., Travel Board hearing). Accordingly, her hearing request was considered withdrawn. 38 C.F.R. § 20.704(d) (2007). In March 2007, the Board remanded the instant claim to the RO for additional development. The requested development has been completed, and the case has returned to the Board for appellate review. By way of that March 2007 decision, the Board also denied service connection for muscle spasms of the neck and shoulders. The veteran has not appealed these determinations and the Board decision with regard to both is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). Thus, appellate review of the instant claim does not includes consideration of finally decided matters involving muscle spasms of the neck and shoulders. FINDINGS OF FACT 1. By a March 1994 rating action, the RO, in part, denied service connection for a lump on the neck, finding that there was no chronic disability; that decision became final in the absence of an appeal. 2. Evidence received since the March 1994 RO decision is new but does not relate to an unestablished fact (i.e., a current diagnosis of a lump on the neck, or residuals therefrom) necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating a claim for service connection for a lump on the neck. CONCLUSION OF LAW The March 1994 rating decision, wherein the RO, in part, denied entitlement to service connection for a lump on the neck, is final; new and material evidence has not been submitted and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must inform the claimant of any information and evidence (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 possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Specific to requests to reopen a previously denied claim, the veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA states that nothing in the Act shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C. § 5103A(f)., In this case, in April 2007 and pursuant to the Board's March 2007 remand directives, the RO provided the veteran with VCAA notice as required by Kent. Although the RO's April 2007 letter informed the veteran that her claim for service connection for a lump on the neck had been previously denied in "May 2003"-not March 1994, she was informed that she needed to submit "EVIDENCE OF A 'PERMANATE' RESIDUAL OR CHRONIC DISABILTY FOR WHICH SERVICE CONNECTION COULD BE ESTALISHED" (i.e., evidence of a current lump of the neck, or residuals therefrom). The veteran was also generally notified of the types of evidence VA would assist her in obtaining and informed that she should send information or evidence relevant to the claim to VA. In addition, the RO provided notice of the law and governing regulations, as well as the reasons for the determinations made regarding the claim, and also informed the veteran of the cumulative evidence previously provided to VA, or obtained by VA on her behalf. For the reasons above the Board finds that VA substantially complied with the specific requirements of Kent, supra. In addition, where the claim involves basic entitlement to service connection, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all of the elements of a claim for service connection, including notice that a disability rating and effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an April 2007 letter, VA provided veteran notice as promulgated in Dingess. Id. The Board also finds that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002). Specifically, the information and evidence associated with the claims file since March 1994 consists of VA treatment and examination records, along with statements of the veteran and her service representative in support of the claim. In April 2005, the veteran failed to appear at a Travel Board hearing before a Veterans Law Judge. Testimony obtained from said hearing might have been instrumental in deciding her appeal. Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the veteran's claim. Therefore, under the circumstances of this case, VA has satisfied its duty to assist the veteran in the claim on appeal. Accordingly, further development and further expending of VA's resources is not warranted and adjudication of her claim on appeal poses no risk of prejudice to the appellant. See, Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Laws and Regulations New and Material-general criteria In general, prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105. An 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. 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. 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(a). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection -general criteria Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2007). Service connection may be granted on the basis of a post- service initial diagnosis of a condition when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing all of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). III. Analysis In this case, the veteran seeks to reopen a previously denied claim of entitlement to service connection for a lump on the neck. In denying service connection for a lump on the neck in March 1994, the RO concluded that although the veteran had received treatment for a painful lump on her neck during service in November 1990, the remainder of her service medical records, along with post-service VA examination and outpatient reports, were devoid of any clinical evidence demonstrating that she currently had a lump on her neck, or evidence showing that she had residuals that were related to the symptoms that she had in service. In short, the RO denied the matter in 1994 because there was no chronic disability diagnosed. As noted previously herein, prior unappealed decisions of the RO are final. 38 U.S.C.A. § 7105. New and material evidence must be received to reopen a veteran's previously denied service connection claim. 38 U.S.C.A. 5108. After reviewing the record, and for reasons expressed below, the Board finds that new and material evidence has not been received to reopen the veteran's previously denied claim of entitlement to service connection for a lump on the neck. In reaching the foregoing determination, the Board observes that evidence received after the RO's March 1994 rating decision consists of duplicate service medical records and VA outpatient and examination reports, dating from August 1994 to March 2003. While the above-referenced VA clinical records dated since 1994 are "new," in that they were not previously before the RO in March 1994, they are not "material." To that end, they do not address the reason for the RO's March 1994 denial: an absence of medical evidence demonstrating that the veteran currently has a lump on her neck, or residuals resulting therefrom. In this regard, a VA clinician diagnosed the appellant as having "musculoskeletal pain," after she complained of having sudden and severe neck pain that stemmed from her job as a baggage handler. (See, VA outpatient report, dated in November 1994, respectively). VA does not generally grant service connection for pain alone, without an identified underlying basis for the symptom. See Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.") Subsequent VA clinical reports also do not contain any evidence of the veteran having a lump on her neck, or any residuals therefrom. On the contrary, the veteran's neck was noted to have been supple on physical evaluation. There was no evidence of adenopathy, jugular venous distention or lymphadenopathy, respectively. (See, February 1999 and May 2001 VA outpatient and respiratory examination reports, respectively). Thus, although the above-referenced VA clinical reports are "new," they are not "material." They do not relate to "[a]n unestablished fact necessary to substantiate the claim-" namely medical evidence that the veteran currently has a lump on her neck, or evidence showing that she has residuals that are related to the lump on her neck during service in 1990. 38 C.F.R. § 3.156 (2007). Finally, the Board notes that the veteran and her service representative have submitted statements in connection with the claim, to include contentions that the appellant currently has residuals of a lump on her neck from service in 1990. As these individuals have no medical training, however, their assertions of medical causation are insufficient to reopen the previously denied claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In this regard, the Board notes that while the veteran can describe her symptoms, her statements, along with those of her representative, as to the cause, onset or claimed presence of a lump on the neck must be supported by competent medical evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Based on the foregoing, the Board concludes that new and material evidence has not been received since the final March 1994 rating action, wherein the RO denied service connection for a lump on the neck. As such, there is no new evidence that has raised a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Accordingly, because new and material evidence has not been received, the claim of entitlement to service connection for a lump on the neck is not reopened. ORDER New and material evidence has not been received and the appeal to reopen the claim of entitlement to service connection for a lump on the neck is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs