Citation Nr: 0813200 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-02 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral osteoarthritis of the shoulders, status post arthroplasty. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from September 1982 to January 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. A September 2003 rating decision denied the veteran's claims of entitlement to service connection for bilateral osteoarthritis of the shoulders, status post arthroplasty and entitlement to service connection for a psychiatric disorder. The veteran was notified of his appellate rights, but did not file a notice of disagreement within one year of the rating decision. 2. Evidence received since the September 2003 rating decision is cumulative of the evidence of record at the time of the September 2003 denial and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral osteoarthritis of the shoulders, status post arthroplasty. 3. Evidence received since the September 2003 rating decision is cumulative of the evidence of record at the time of the September 2003 denial and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The September 2003 rating decision which denied the veteran's claim of entitlement to service connection for bilateral osteoarthritis of the shoulders, status post arthroplasty and entitlement to service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the September 2003 rating decision in connection with veteran's claim of entitlement to service connection for bilateral osteoarthritis of the shoulders, status post arthroplasty, is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. Evidence received since the September 2003 rating decision in connection with veteran's claim of entitlement to service connection for a psychiatric disorder is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence - evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service- connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. After careful review of the record, the Board finds that, with respect to the claim of entitlement to service connection for bilateral osteoarthritis of the shoulders, VA provided the veteran with all necessary and proper VCAA notice. In this regard, a February 2005 letter notified the veteran of the evidence and information necessary to establish entitlement to his underlying service connection claim. In addition, the February 2005 letter informed the veteran of the basis for the RO's previous denial. The February 2005 letter also provided appropriate notice regarding what constitutes new and material evidence and specifically informed him what evidence and information was necessary to reopen his claim. This letter advised the veteran of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Finally, the February 2005 letter expressly informed the veteran of the need to submit any pertinent evidence in his possession. However, with regards to the veteran's claim of entitlement to service connection for a psychiatric disorder, the Board notes that neither the February 2005 letter, nor any other correspondence, provided notice regarding the basis for the previous denial. Nevertheless, the Board finds that the veteran is not prejudiced by this lack of notice because the evidence of record demonstrates that he had actual knowledge of this information. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005); rev'd on other grounds, Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant). In this regard, the Board observes that the veteran asserts in his January 2005 claim that VA was "clearly wrong" to deny benefits because his psychiatric disorder is not related to his active service. The Board finds that the content of this statement clearly demonstrates that the veteran had actual knowledge of why his previous claim was denied. Moreover, as noted above, the February 2005 notice letter provided the veteran with sufficient notice as to what evidence was necessary to reopen his previously denied claim, and what constituted new and material evidence. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Board also finds that the there has been substantial compliance with the assistance provisions set forth in the law and regulations. The veteran's service medical records are associated with the claims folder, as well as relevant private treatment records. The Board observes that the veteran identified in his January 2005 claim that he was having surgery, and provided the name and address of his physician. However, he failed to provide VA the necessary medical release after being requested by VA to do so. As such, the Board finds that VA's duty to further assist the veteran in locating additional records has been satisfied. Analysis Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c), and the claim may only be reopened through the receipt of 'new and material' evidence. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The veteran's request to reopen his claim was received in January 2005, and the regulation applicable to his appeal provides that new and 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) (2007). 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. In a September 2003 rating decision, the veteran's claims of service connection for bilateral osteoarthritis of the shoulders and a psychiatric disorder were denied on the basis that the claimed disabilities were not etiologically related to his active service. The veteran was notified of his appellate rights, but did not initiate an appeal of the decision; therefore, the RO's September 2003 decision is final. 38 U.S.C.A. § 7105. In January 2005, the veteran submitted a statement claiming the RO was erroneous in denying service connection for both bilateral osteoarthritis of the shoulders and a psychiatric disorder. In a May 2005 rating decision, the RO denied his application to reopen due to a lack of new and material evidence. Evidence received prior to the September 2003 rating decision included service medical records and private treatment records. According to July and September 2003 rating decisions, the RO denied the veteran claims for service connection because the veteran's claimed conditions are not etiologically related to his active service. Specifically, the RO found that the veteran did not develop osteoarthritis of the shoulders until 1996, and a psychiatric disorder until 1997, more than ten years after his active service. New evidence received since the September 2003 RO rating decision includes a statement from the veteran, Social Security Administration (SSA) records and private treatment records and reports. SSA and private treatment records indicate continued osteoarthritis of the shoulders with associated pain and the development of a psychiatric disorder. The Board observes that the records and reports noted above note the cause of the veteran's shoulder disorder to be a work-related accident in 1994 with the development of dysthymia in 1997 secondary to his physical condition. In addition, the Board notes that there is no comment or opinion regarding any relationship between his current condition and active service. After careful review, the Board concludes that newly received evidence is duplicative of the record prior to the September 2003 rating decision, and does not raise a reasonable possibility of substantiating the veteran's claim. The SSA and private treatment records and reports do not contain any competent medical evidence linking the veteran's current bilateral shoulder disability or psychiatric disorder to his active military service. Rather, the new medical evidence does nothing more than show that the veteran continues to suffer from these disorders. As such, the veteran's appeal must be denied. ORDER New and material evidence to reopen a claim of entitlement to service connection for bilateral osteoarthritis of the shoulders, status post arthroplasty, has not been submitted. The appeal is denied. New and material evidence to reopen a claim of entitlement to service connection for a psychiatric disorder has not been submitted. The appeal is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs