Citation Nr: 0812826 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-10 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney ATTORNEY FOR THE BOARD J. M. Macierowski, Associate Counsel INTRODUCTION The veteran served on active duty from April 1953 to Apri1 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDINGS OF FACT 1. An unappealed rating decision dated in September 1962 denied entitlement to service connection for a back disorder. 2. The additional evidence received since the time of the unappealed September 1962 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder. CONCLUSION OF LAW Evidence submitted to reopen the claim of entitlement to service connection for a back disorder is not new and material, and therefore, the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The February 2007 Board decision denied, among others, the issue of whether new and material evidence had been submitted to reopen a claim for entitlement to service connection for a back disorder. The veteran appealed the denial of this issue to the United States Court of Appeals for Veterans Claims (Court). Consequent to a March 2008 Order granting a February 2008 Joint Motion for Remand (Joint Motion), that issue has been remanded to the Board. A letter was sent to the veteran and his attorney on March 12, 2008, in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. A letter was received from the veteran's attorney in April 2008, providing a copy of the Joint Motion and requesting that the directives of the Joint Motion be followed. VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the veteran or his representative, or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2007). Here, the Court remanded the Board's decision in this matter, finding that the VA had not met its statutory and regulatory duty to notify, or to provide adequate reasons and bases for the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Therefore, the Board finds that its decision of February 5, 2007 decision with respect to the issue of whether new and material evidence had been submitted to reopen a claim for entitlement to service connection for a back disorder failed to provide the veteran due process under the law. Accordingly, in order to prevent prejudice to the veteran, the February 2007 decision of the Board must be vacated with respect to the issue remanded by the Court, and a new decision entered as if that Board decision had never been issued. With respect to the veteran's claim to reopen the issue of entitlement to service connection for a back disorder, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim, a letter dated in June 2003 satisfied the duty to notify provisions; an additional letter was sent in March 2006. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The February 2008 Joint Motion, in citing Kent v. Nicholson, 20 Vet. App 1 (2006) concluded that the June 2003 and March 2006 letters "did not address the information and evidence necessary to reopen the previously denied back disorder claim," finding that the veteran was not notified that in order to reopen his claim for service connection for a back disorder, he would have to "submit evidence either that he suffered a back injury during service, or medical evidence that his current back disability was related to service." However, the Board concludes that based on the overall record, the deficiencies in these letters did not result in prejudice to the veteran. In the February 2005 statement of the case, the RO informed the veteran that the evidence submitted with and since his May 2003 claim to reopen provides no indication of a back injury or of a chronic back condition incurred in service and existing to the present time. Absent any new and material evidence to show a back condition and its relationship to our military service which ended in 1956, the claim must continue to be denied [ . . . .] Moreover, the Board notes that subsequent to the issuance of the statement of the case, the veteran had over 16 months in which to request clarification of same, to provide additional statements and evidence, and to seek the help of his representative. He gave testimony during an August 2005 hearing before a Decision Review officer at the RO. Subsequently, the January 2006 supplemental statement of the case again noted that while the veteran reported current back symptomatology during the August 2005 hearing, the record still did not include evidence associating his current back symptomatology with his military service. Thus, it is clear to the Board that while notice was not provided in preadjudication letters, the veteran was informed of the specific evidence required to substantiate his claim, and was thus not prejudiced by the deficiencies inherent in the aforementioned letters. See Kent, 20 Vet. App at 10. Additionally, the veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board also notes that although a VA examination was not conducted with respect to the veteran's claim to reopen the issue of entitlement to service connection for a back disorder, VA is not required to obtain an examination for a claim to reopen a finally decided decision. See 38 C.F.R. § 3.159(c). 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. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] 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.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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 pertinent evidence of record at the time of the September 1962 unappealed rating decision included the veteran's service medical records and an August 1962 VA examination. The additional pertinent evidence added to the record since that decision includes private treatment records dated from 1999 to 2004; VA outpatient treatment records dated from May 2001 to September 2005; the transcript from the veteran's RO hearing in August 2005; and the veteran's statement in support of his claim dated in August 2005. The RO denied the veteran's claim for entitlement to service connection for a back disorder in September 1962. At that time, the evidence of record did not show that the veteran's current back symptomatology was related to his military service or to a service-connected disability, and this continues to be the case. While the record contains significant amounts of VA and private treatment records pertaining to other medical conditions, they only make passing references to the veteran's report that he had undergone disc surgery in the past; similarly, the veteran's August 2005 statement noted that he had undergone back surgery in the 1970s, and reported that he continues to have intermittent back symptoms. However, there is no objective medical opinion that the veteran's current symptomatology, or the reported 1970s surgery, is related to his military service. Accordingly, although evidence submitted since the last final rating decision is "new," as it had not been previously considered by VA, it is not "material," as it does not raise a reasonable possibility of substantiating the veteran's claim for service connection. As new and material evidence to reopen his finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable, and the issue of entitlement to service connection for a back disorder is not reopened. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted, the appeal to reopen the veteran's claim for entitlement to service connection for a back disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs