Citation Nr: 0813907 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 05-17 536A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date prior to January 9, 2004 for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for arthritis of the left wrist, and if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a previously denied claim for service connection for residuals of a head injury with headaches. 4. Whether new and material evidence has been received to reopen a previously denied claim for service connection for residuals of a hand injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from March 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2007, the veteran submitted a Motion to Advance on the Docket. In March 2008, the Board granted the veteran's motion. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. The veteran filed a claim for service connection for bilateral hearing loss on January 9, 2004. 2. The evidence received with regard to left wrist arthritis since the final July 1984 rating decision is cumulative of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the veteran's claim. 3. The evidence received with regard to residuals of a head injury since the final July 1999 rating decision is cumulative and redundant of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the veteran's claim. 4. The evidence received with regard to residuals of a hand injury since the final July 1984 rating decision is cumulative and redundant of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the veteran's claim. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 9, 2004 for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). 2. The July 1984 RO decision is final; new and material evidence has not been received to reopen a claim of service connection for arthritis of the left wrist. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The July 1999 RO decision is final; new and material evidence has not been received to reopen a claim of service connection for residuals of a head injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 4. The July 1984 RO decision is final; new and material evidence has not been received to reopen a claim of service connection for residuals of a hand injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). With regard to the claims for an earlier effective date for service connection for bilateral hearing loss, to reopen claims for service connection for residuals of a head injury, left wrist arthritis, and the residuals of a hand injury, the Board finds that VA satisfied its duties to notify and assist, as discussed below. The Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA 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 the claims for VA benefits. In this case, the veteran was provided with a VCAA notification letter in March 2004, prior to the initial unfavorable AOJ decision issued in July 2004. Additional VCAA letters were sent in October 2004 and March 2005. The Pelegrini Court held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) Inform a 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 that 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. Pelegrini, 18 Vet. App. at 120-121. The Board notes that the letters sent to the veteran in March 2004, October 2004, and March 2005 informed him of how VA would assist him in developing his claim and his and VA's obligations in providing evidence for consideration and requested that he send any evidence in his possession to VA. The March 2004 letter also advised him of the evidence necessary to establish service connection and that he had been previously denied service connection for residuals of a head injury and residuals of a hand injury and of the dates of those prior denials. The Board notes that, although the March 2004 letter notified the veteran that he had been previously denied service connection for residuals of head and hand injuries, none of the letters informed him of the reason for these denials, as required by Kent v. Nicholson, 20 Vet. App. 1 (2006). Failure to provide pre-adjudicative notice of any of the elements of notice required for VCAA compliance is presumed to create prejudicial error. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Sanders; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The claim for service connection for residuals of a head injury was originally denied in an April 1946 rating decision on the basis of no current disability. Service connection for a hand injury and left wrist arthritis were denied in November 1982 and July 1984 rating decisions. The March 2004 letter advised the veteran of what constitutes new and material evidence, and that in order to establish service connection for these disorders, he must show in-service injury or incurrence, a current disability, and a relationship between the in-service event and the current disability. In the case of the residuals of a head injury, the veteran specifically discussed what he claims are current effects of his in-service injury, i.e., loss of equilibrium, resulting in falls, in both his January 2004 claim and September 2004 notice of disagreement. As for his residuals of a hand injury and left hand arthritis, the veteran's claim was previously missing multiple elements of a service connection claim; thus, the general notification regarding service connection claims, in effect, informed him of the evidence he needed to reopen his previously denied claim. Additionally, the veteran has specifically stated that he suffered lye burns to his hands and that his hands have been deformed and bothered him since that time. He has also asserted that he broke his wrist in service, which led to arthritis. Thus, he has displayed knowledge of what he must establish to reopen his claims and establish service connection for the claimed disability. Consequently, the Board finds no prejudice to the veteran in proceeding with a decision on these claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Also pertinent to VA notice requirements is the Court's decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman 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. Additionally, this notice must notify the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Board notes that no communication from the RO to the veteran informed him of the evidence necessary to establish entitlement to disability ratings or effective dates. Nevertheless, the Board determines that he will not be prejudiced by the issuance of a final decision. See Bernard at 394. As the Board concludes herein that the preponderance of the evidence is against the veteran's new and material claims, any questions as to the appropriate disability ratings or effective dates to be assigned for these disabilities are rendered moot. As for his claim for an earlier effective date for service connection for bilateral hearing loss, the deficiency of notice is cured by evidence of actual knowledge on the part of the veteran, through his representative's arguments in both a November 2005 statement and December 2007 informal hearing presentation. In this regard, the Board notes that these documents cite the statutes and regulations relevant to the assignment of effective dates, thereby demonstrating knowledge of the evidence required to establish, and the procedure followed for assigning, effective dates. All that VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished all due process concerns have been satisfied. See Bernard; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As indicated above, the Board determines that the content requirements and purpose of VCAA notice have been fully satisfied. Therefore, the Board finds that delaying appellate review by providing additional VCAA letters to the veteran would be of no benefit. VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claims. The veteran's service medical records, VA medical records, private treatment records, and the reports from a December 1949 VA examination and a January 1979 VA pension examination were reviewed by both the AOJ and the Board in connection with adjudication of his claims. The veteran has stated that he was informed that his service medical records were lost in the 1973 St. Louis fire. The Board notes that official documentation of this loss is not of record. Nevertheless, the Board also observes that the RO requested the veteran's service medical records in February 1946, at the time of his original claim, and subsequently received veteran's enlistment and service discharge examination, as well as dental records. Requests for additional service medical records made by the RO to verify the veteran's specific reports of in-service injuries in June 1949 and August 1949 yielded responses that the sick reports of Battery A, 779th AAA AW Battalion showed treatment of the veteran in September 1943, with no other remarks with regard to the veteran from November 1944 to January 1945, and that there were no additional medical records found. Thus, the Board concludes that, in twice attempting to retrieve all service medical records for the veteran in 1949, less than four years after service discharge, VA satisfied its duty to assist in locating relevant service records. Additionally, the Board notes that the veteran provided authorizations to release records to VA from Wilson Memorial Hospital and Lima Memorial Hospital. Wilson Memorial Hospital responded that they had no records for the veteran on file. Two requests were sent to Lima Memorial Hospital, and neither request yielded any response. The veteran was informed of these events in a March 2005 letter, and he provided no further information in this regard. Moreover, the Board observes that the veteran indicated that the records from Lima Memorial Hospital were related to treatment for his back; consequently, the Board finds that they are unlikely to be relevant to any of the claims on appeal. Finally, the Board observes that the veteran has been in receipt of benefits from the Social Security Administration (SSA) since 1985. The records relevant to the veteran's application for these benefits are not associated with the claims file. The Board acknowledges the holding of Tetro v. Gober, 14 Vet. App. 110 (2000) and other cases, in which the Court has held that VA has a duty to request information and pertinent records from other Federal agencies when it has knowledge of their existence. However, in the March 2004, October 2004, and March 2005 VCAA letters, the veteran was advised of VA's responsibilities in obtaining evidence from other federal agencies, to include SSA, and asked to identify any evidence VA should obtain on his behalf. The veteran has never identified the records held by SSA as being relevant to his claim or requested that VA obtain them. Thus, as the Board holds the belief that the duty to assist a veteran by obtaining records to support his claim still rests upon the veteran having identified them as relevant or requesting that VA obtain such records, the Board finds that a remand to obtain these records is not necessary. Based on the above analysis, the Board determines that VA has fulfilled its duty to assist in obtaining outstanding records identified by the veteran. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to decide the claims. VA is not obligated to provide a VA examination in new and material claims until the claim is reopened; thus an examination with regard to residuals of a head injury, left wrist arthritis, and the residuals of a hand injury is not warranted. As for the veteran's claim for an earlier effective date, the findings of a current VA examination would not be relevant. Based on these facts, the Board concludes that the medical evidence of record is sufficient to adjudicate the veteran's claim without further development. Thus, the Board finds that additional efforts to assist or notify the veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced by the Board proceeding to the merits of the claims. II. Analysis A. Effective date On his claim for service connection for hearing loss, submitted January 9, 2004, the veteran indicated that he suffered hearing loss as a result of having a shell explode next to him while in service on Okinawa. In a July 2004 rating decision, service connection was granted for bilateral hearing loss and a 40 percent rating evaluation assigned, effective January 9, 2004. The veteran thereafter appealed with respect to the effective date, arguing both that service connection should date back to the date of his first claim for any VA benefits, which he filed in March 1946, and to 1974, when he was last able to work. Under governing law, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). Where evidence requested in connection with an original claim is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, benefits based on such evidence shall commence not earlier than the date of filing of the new claim. 38 C.F.R. § 3.158. The veteran's claims filed in March 1946, August 1949, November 1978, September 1982, June 1984, March 1996, and June 1999 make no reference to hearing loss, and neither the medical records submitted, the December 1949 VA examination report, nor the January 1979 VA pension examination reveal complaints or diagnosis of hearing loss. Prior to the January 2004 application for benefits, the only reference to the veteran's ears or hearing is a May 1987 claim for a cracked right ear drum, which he indicated caused a 20 percent loss of hearing. In addition to the cracked right ear drum, in the May 1987 claim, the veteran claimed disabilities of residuals of a head injury and hand injury and a left wrist injury. The Board observes that the RO did not fully adjudicate these claims. However, in a June 1987 letter, the RO advised the veteran that he must submit new and material evidence with regard to the head, hand, and wrist injury claims, specifically citing the May 1987 application for benefits. The veteran did not respond to this letter, and the next communication from him with regard to any claim is dated in April 1996. It appears that the RO believed the claim for a cracked eardrum to be part and parcel of the claim for residuals of a head injury, which had been previously denied. Although he was asked to provide new and material evidence to reopen these claims, he did not communicate with the RO again for almost 9 years. The next communication from him as to service connection for hearing loss is his January 2004 application for benefits. Thus, the Board finds that the veteran's May 1987 claims, to include the cracked right ear drum claim, were abandoned and the earliest effective date available to the veteran for his hearing loss claim is the date his new claim was filed, January 9, 2004. See id. The Board observes that records of June 2001 surgery on the right ear are in the claims file, and that they reflect a diagnosis of conductive hearing loss. However, even if the Board assumed that entitlement arose in June 2001 based on this diagnosis, as indicated, the effective date for a grant of benefits is the latter of the date entitlement arose and the date of application for benefits. In this case, January 2004, the date of claim, is the later of the two. The Board is cognizant that there are circumstances under which A report of examination or hospitalization will be accepted as an informal claim for benefits, if the report relates to a disability that may establish entitlement. Once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increased benefits: (1) Report of examination or hospitalization by VA or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, only when such reports relate to examination or treatment of a disability for which service- connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157. In this instance, the 2001 surgery was conducted at a private facility; thus, it is the date of receipt of the records that could be accepted as a date of claim, and not the actual date of the records themselves. As the report was not received by the RO until January 2005, it could not support a grant of an earlier effective date under the provisions of 38 C.F.R. § 3.157. Accordingly, the Board finds that there is no basis for assigning an effective date prior to January 9, 2004 for service connection for bilateral hearing loss. The May 1987 claim is considered abandoned, and beyond that claim, the earliest claim for hearing loss is the veteran's January 9, 2004 application for service connection. Accordingly, the earliest effective date for bilateral hearing loss warranted is January 9, 2004, and his claim for a date prior to that must be denied. 38 U.S.C.A. §§ 5110 (a)-(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007). B. New and material evidence Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The 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, VA shall reopen the claim and review the former disposition of the claim. The veteran filed his application to reopen his claims of entitlement to service connection for left wrist arthritis and residuals of a head injury and hand injury in January 2004. Thus, the definition of new and material evidence effective August 29, 2001, found at 38 C.F.R. § 3.156(a)(2007), applies in this case: 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The most recent denial with regard to left wrist arthritis and residuals of a hand injury was dated in July 1984. The most recent denial with regard to residuals of a head injury was dated in July 1999. In July 1984 and July 1999, the veteran was advised of these decisions and his appellate rights. The veteran did not appeal these decisions. The next communication received by VA with regard to any of these issues was his January 2004 application to reopen claims for service connection for left wrist arthritis and residuals of a head injury and residuals of a hand injury. Thus, the July 1984 and July 1999 decisions are final. 38 U.S.C. § 4005(c) (1982), § 7105 (West 1991) [(West 2002)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1984), §§ 3.104, 20.302, 20.1103 (1999) [(2007)]. Service connection for left wrist arthritis was originally denied in a January 1950 rating decision on the basis of no in-service injury or current disability, and the RO denied reopening the claim in a July 1984 rating decision. Although the veteran had been given a diagnosis of arthritis in the report of a 1979 VA examination, the evidence still did not show that it was related to any in-service injury. The claim for service connection for residuals of a head injury was originally denied in an April 1946 rating decision on the basis of no current disability. The claim was reopened and again denied on the merits in May 1949 and January 1950, and reopening of the claim was denied in November 1982, July 1984, and July 1999 rating decisions. Service connection for a hand injury was denied on the basis of no in-service injury and no current disability in November 1982 and July 1984 rating decisions. With regard to the veteran's service connection claim for left wrist arthritis, the Board notes that there was evidence in the form of a January 1979 VA pension examination, which revealed a diagnosis of traumatic arthritis of the left wrist, of record at the time of the last final denial of the veteran's claim to reopen in July 1984. Thus, recently submitted medical records showing a history of arthritis are cumulative of previously received evidence, and are not new and material evidence. There remains no medical evidence suggesting a relationship between arthritis of the left wrist and military service. With regard to residuals of a head injury, the veteran has only submitted a "buddy" statement reflecting that the veteran suffered a head injury in service. The fact that an in-service head injury occurred was established at the time of the veteran's original service connection claim, and thus, the missing elements are medical evidence of current disability and a relationship of such disability with the in- service injury. The veteran has not submitted any medical evidence showing that he currently suffers residuals from that in-service head injury since the prior final denial in July 1999. As for residuals of a hand injury, since the July 1984 decision, no medical evidence showing either an in-service injury to the hands or a current disability of the hands has been submitted. Thus, new and material evidence has not been submitted to support reopening of the veteran's service connection claims for residuals of a head injury or hand injury. Accordingly, the claims for service connection for residuals of a head injury and residuals of a hand injury are not reopened, but the claim for service connection for arthritis of the left wrist is considered reopened. The Board has considered the veteran's statements as to his present residuals of a head injury and his claimed in-service injury to his hands and current residuals of that injury. However, the Board notes that lay evidence in this regard cannot suffice as new and material evidence to reopen a claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993) (the veteran cannot meet his initial burden of supplying new and material evidence by relying upon his own opinions as to medical matters). Furthermore, the veteran previously submitted statements alleging in-service injuries, and the claimed current disabilities and symptoms. Thus, his current lay assertions are essentially cumulative of evidence received prior to the last final denials. ORDER An effective date prior to January 9, 2004 for service connection for bilateral hearing loss is denied. New and material evidence not having been received, the claim to reopen a previously denied claim for service connection for arthritis of the left wrist is denied. New and material evidence not having been received, the claim to reopen a previously denied claim for service connection for residuals of a head injury is denied. New and material evidence not having been received, the claim to reopen a previously denied claim for service connection for residuals of a hand injury is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs