Citation Nr: 0811090	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  04-03 370A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUE

Whether new and material evidence has been submitted to 
reopen a claim for service connection for a neck disability; 
and if so, whether the claim may be granted.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Olson, Associate Counsel




INTRODUCTION

The veteran had active military service from August 1966 to 
August 1969.

This matter is before the Board of Veterans' Appeals (Board) 
following a Board Remand in May 2007.  This matter was 
originally on appeal from a June 2003 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO) in 
Chicago, Illinois.

When this claim was remanded in May 2007, the Board also 
denied a claim for service connection for post-traumatic 
stress disorder (PTSD).  Therefore, that issue is no longer 
on appeal. 


FINDINGS OF FACT

1.  A claim for service connection for a neck condition was 
denied by a January 1970 rating decision that was not 
appealed.

2.  Evidence submitted subsequent to the January 1970 rating 
decision does not raise a reasonable possibility of 
substantiating the claim.


CONCLUSIONS OF LAW

1.  The January 1970 rating decision which denied a claim for 
service connection for a neck condition is final. 38 U.S.C. § 
4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1970).

2.  New and material evidence has not been submitted, and the 
claim of entitlement to service connection for a neck 
disability is not reopened.  38 U.S.C.A. §§ 5108 (West 2002 & 
Supp. 2007); 38 C.F.R. § 3.156 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	Preliminary Matters

The Board has thoroughly reviewed all the evidence in the 
veteran's claims folder.  Although the Board has an 
obligation to provide reasons and bases supporting this 
decision, there is no need to discuss, in detail, all of the 
evidence submitted by the veteran or on his behalf.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
(the Board must review the entire record, but does not have 
to discuss each piece of evidence).  The analysis below 
focuses on the most salient and relevant evidence and on what 
this evidence shows, or fails to show, on the claim.  The 
veteran must not assume that the Board has overlooked pieces 
of evidence that are not explicitly discussed herein.  See 
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the veteran).  

Pursuant to the Board's May 2007 Remand, the RO readjudicated 
the veteran's claim under provision of the Veterans Claims 
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 
2096 (2000) as discussed in more detail below and issued a 
supplemental statement of the case.  Based on the foregoing 
actions, the Board finds that there has been compliance with 
the Board's May 2007 Remand.  Stegall v. West, 11 Vet. App. 
268 (1998).

II.	Veterans Claims Assistance Act of 2000

VA has met all statutory and regulatory notice and duty to 
assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2007). 

A letter dated in May 2007 fully satisfied the duty to notify 
provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); 
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Kent v. 
Nicholson, 20 Vet. App. 1 (2006).  The veteran was aware that 
it was ultimately his responsibility to give VA any evidence 
pertaining to the claim.  The May 2007 letter told him to 
provide any relevant evidence in his possession.  That letter 
also advised the veteran of the basis of the prior denial of 
his claim and what evidence would be needed to reopen the 
claim.  See Kent, supra.  He was advised of the elements of a 
claim for service connection and of the duties he and VA 
shared in developing the claim.  In addition, the May 2007 
letter advised of how VA determines disability ratings and 
effective dates once service connection is granted.  Dingess 
v. Nicholson, 19 Vet. App. 473 (2006).

Although this letter was not sent prior to initial 
adjudication of the veteran's claim, this was not prejudicial 
to him, since he was subsequently provided adequate notice, 
and the claim was readjudicated and an additional 
supplemental statement of the case (SSOC) was provided to the 
veteran in November 2007.  

The veteran's service medical records and identified private 
medical records have been obtained, to the extent available.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no 
indication in the record that any additional evidence, 
relevant to the issues decided herein, is available and not 
part of the claims file.  The veteran was also accorded a VA 
examination in April 2003.
  
As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006).

III.	New and Material Evidence

In a decision dated in January 1970, the RO denied the 
veteran's claim for service connection for a neck condition.  
The veteran did not appeal this decision.  A finally 
adjudicated claim is an application which has been allowed or 
disallowed by the agency of original jurisdiction, the action 
having become final by the expiration of one year after the 
date of notice of an award or disallowance, or by denial on 
appellate review, whichever is the earlier.  See 38 U.S.C. § 
4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1970).  
Thus, the January 1970 decision is final.  

The veteran's application to reopen his claim of service 
connection for a neck disability was received in December 
2002.  The Board notes that there has been a regulatory 
change with respect to the definition of new and material 
evidence, which applies prospectively to all claims made on 
or after August 29, 2001.  As the veteran filed his claim 
after this date, the new version (cited below) applies in 
this case.

A claimant may reopen a finally adjudicated claim by 
submitting new and material evidence.  New evidence means 
existing evidence not previously submitted to agency decision 
makers.  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).

The Board notes that by a June 2003 rating decision, the RO 
declined to reopen the veteran's claim of entitlement to 
service connection for a neck injury.  On appeal, however, 
the Board must make its own determination as to whether any 
newly submitted evidence warrants a reopening of the claim.  
This is important because the preliminary question of whether 
a previously denied claim should be reopened is a 
jurisdictional matter that must be addressed before the Board 
may consider the underlying claim on the merits.  See Barnett 
v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

To prevail on the issue of service connection there must be 
medical evidence of a current disability; medical evidence, 
or in certain circumstances, lay evidence of in-service 
occurrence or aggravation of a disease or injury; and medical 
evidence of a nexus between an in-service injury or disease 
and the current disability.  See Hickson v. West, 12 Vet. 
App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 
346 (1999).  


The RO denied service connection for a neck condition in 
January 1970 because the record was absent evidence of any 
neck injury or any neck condition in service.  The January 
1970 rating decision noted that the veteran's discharge 
examination was negative.

Based on the grounds stated for the denial of service 
connection for a neck condition in the January 1970 rating 
decision, new and material evidence would consist of evidence 
of a neck injury in service, evidence of a current neck 
disability, and medical evidence linking such disability to 
active service.  In this regard, additional evidence received 
since the January 1970 rating decision includes private 
medical treatment records, a VA examination report dated in 
April 2003, and written statements from the veteran.

Although the veteran provided written statements that he 
injured his neck while working on an antenna in Vietnam while 
assigned to the 121st Sig Bn, 1st Infantry Division at Lai 
Khe, that he was treated at the 93rd Evac in March 1967, and 
that he went on sick call several times and was instructed to 
go to the VA for treatment when he was discharged, this is 
not new evidence as the veteran essentially provided this 
information when he originally applied for compensation in 
September 1969.  The veteran stated in 1969, "While serving 
in Viet [] Nam, I was putting up an antenna atop a pole and 
fell, cracking the cartilage in my neck.  I was treated and 
my neck bothers me a great deal."  The December 1969 request 
for information from the RO indicated that the veteran 
alleged a neck injury in March 1967 at the 93rd Evac. Long 
Binh, Viet Nam; however, the 1967 clinical records for 93rd 
Evac. Hospital did not contain records for the veteran.   

With respect to the private medical records, although new, 
they are not material in that they are not contemporaneous 
with the veteran's service and do not provide evidence of a 
neck injury in service.

With respect to a VA examination conducted in April 2003, the 
Board notes that the VA examiner diagnosed chronic neck pain 
with decreased range of motion ever since fall from radio 
antenna while on active duty in the U.S. Army.  However, 
chronic neck pain is not a disability but just reported 
symptomatology.  Without a recognized injury or disease 
entity, VA is not authorized to award compensation for 
reported symptomatology.  38 U.S.C.A. § 1131; 38 C.F.R. § 
3.303(a) (Service connection is awarded for "a particular 
injury or disease resulting in disability..."); see also 
Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd 
in part sub nom.   Sanchez-Benitez v. Principi, 259 F.3d 
1356, 1363 (Fed. Cir. 2001) (The CAVC held that 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.)  Thus, the 
record is still absent competent evidence of a chronic neck 
disability.

Thus, the Board finds that the VA examination report, private 
medical records, and statements of the veteran do not raise a 
reasonable possibility of substantiating the claim.  38 
C.F.R. § 3.156(a).


ORDER

New and material evidence not having been submitted, the 
veteran's request to reopen his claim for service connection 
for a neck disability is denied.



____________________________________________
MICHELLE L. KANE
Chief Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs