Citation Nr: 0812993 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-30 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence as been received to reopen a claim for service connection for the residuals of a low back injury. 2. Whether new and material evidence as been received to reopen a claim for service connection for numbness of the hands and feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from October 1968 to October 1970. This case initially came to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were remanded by the Board in April 2007. FINDINGS OF FACT 1. Service connection for the residuals of an injury of the low back was last denied by the RO in a March 1997 rating action on the basis that new and material evidence was not submitted. The veteran was notified of this action and of his appellate rights, but failed to file a timely appeal. The original basis for denial was that an acute back contusion in service resolved without residuals found on post-service examination. Subsequent denials noted back problems years later but without a relationship to service permitting reopening of the claim. 2. Since the March 1997 decision denying service connection for the residuals of an injury of the low back, the additional evidence, not previously considered, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 3. Service connection for numbness of the hands and feet was last denied by the RO in an October 1985 rating action. It was held that the disorder was not shown in service and was not shown related to Agent Orange. The veteran was notified of this action and of his appellate rights, but failed to file a timely appeal. 4. Since the October 1985 decision denying service connection for numbness of the hands and feet, the additional evidence, not previously considered, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The additional evidence received subsequent to the March 1997 decision of the RO, which denied service connection for the residuals of an injury of the low back, is not new and material; thus, the claim for service connection for this disability is not reopened, and the March 1997 RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). 2. The additional evidence received subsequent to the October 1985 decision of the RO, which denied service connection for numbness of the hands and feet is not new and material; thus, the claim for service connection for this disability is not reopened, and the October 1985 RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. In this regard, the Court has held that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. In VCAA letters dated in January 2004 and April 2007, the RO notified the appellant of the information and evidence necessary to substantiate the claim, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The April 2007 letter provided all necessary notifications. Furthermore, the April 2007 letter provides sufficient notice as to what is needed in terms of new and material evidence so as to satisfy the notice provisions of Kent v. Nicholson, 20 Vet. App. 1 (2006). Service connection for the residuals of a low back disorder was previously denied by the RO in a March 1997 rating decision. The veteran did not appeal this determination. In such cases, it must first be determined whether or not new and material evidence has been submitted such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). Service connection for a disability manifested by numbness of the hands and feet was previously denied by the RO in an October 1985 rating decision. The veteran did not appeal this determination. In such cases, it must first be determined whether or not new and material evidence has been submitted such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Review of the records shows that at the time service connection was last denied by the RO, in March 2007, the evidence of record included the service treatment records, that showed that the veteran was treated for complaints of back pain following an incident when the vehicle in which he was riding struck a land mine and he sustained an injury of his left lower leg. Examination at separation from service and VA compensation examinations in 1972 and 1985 showed no back abnormality. Private treatment records dated in the early 1990's show complaints and treatment for a low back disorder following a back injury while lifting a box while working. There was no relationship drawn between this injury and the complaints of back pain during service. On VA examination in August 1996, the pertinent diagnosis was low back pain syndrome with radiculopathy, rule out lumbar disc. No relationship was made between this diagnosis and any event that occurred during service. Evidence received in connection with the veteran's application to reopen the claim includes an additional VA compensation examination in January 2004. While noting the veteran's back complaints, the examination report was primarily concerned with the veteran's service-connected left lower extremity disorder and did not relate to the veteran's low back disorder. This examination report details the veteran's back complaints many years after service but does not indicate in any way that the condition is related to service. Such evidence is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). Under these circumstances, as new and material evidence has not been submitted, the application to reopen the claim must be denied. Evidence of record at the time of the October 1985 denial of service connection for numbness of the hands and feet includes the service treatment records that show no complaint or manifestation of this disorder while the veteran was on active duty. It was also held that these symptoms were unrelated to Agent Orange exposure. The veteran had complaints of numbness of the hands and feet on examination by VA in August 1985. There was no indication of a relationship between these complaints and service. Since the October 1985 decision, the veteran has not submitted evidence of a disability manifested by numbness of the hands and feet that is related to service. As such, there is no new and material evidence that has been submitted on which the claim may be reopened. ORDER New and material evidence having not been received, the applications to reopen the claims for service connection for the residuals of an injury of the low back and a disability manifested by numbness of the hands and feet are denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs