Citation Nr: 0813957 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-16 303A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right hip disability. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for carpel tunnel syndrome. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from November 1966 to October 1969. These matters come to the Board of Veterans' Appeals (Board) from December 2002 and May 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2006, the Board remanded the matters for further development. The Board notes that the remand cover page erroneously lists the hip issue as pertaining to the "left" hip. However, this is a typographical error as the remand discussion and the claims file clearly note that the right hip is the issue under appeal. The veteran was scheduled for a Board hearing in Washington, DC. However, prior to the hearing, the veteran stated that he would not be able to attend and expressed his desire for the appeal to proceed without his testimony. Thus, his request for a hearing before a member of the Board is considered withdrawn. See 38 C.F.R. § 20.704 (2007). FINDINGS OF FACT 1. A February 1997 rating decision determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for a right hip disability. That decision was not appealed and is final. 2. The evidence received since that time is either cumulative or redundant or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right hip disability. 3. A September 2000 Board decision denied service connection for carpel tunnel syndrome. That decision was not reconsidered or appealed and is final. 4. The evidence received since that time is either cumulative or redundant or does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for carpel tunnel syndrome. CONCLUSIONS OF LAW 1. The evidence received since the final February 1997 rating decision is not new and material, and the claim for service connection for a right hip disability is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 2. The evidence received since the final September 2000 Board decision is not new and material, and the claim for service connection for carpel tunnel syndrome is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In this case, in an October 2002 letter, the RO advised the veteran of the evidence needed to substantiate a claim for service connection and the distribution of duties in obtaining such. A May 2003 letter advised the veteran of the meaning of new and material evidence. In a July 2006 letter, the RO provided notice regarding what information and evidence is needed to substantiate the claims, including the need to submit new and material evidence, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to submit any further evidence he has in his possession that pertains to the claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also advised him of the bases for the prior denials as well as the evidence needed to establish a disability rating and effective date. In addition, with respect to the carpel tunnel syndrome claim, the veteran was informed of the evidence needed to substantiate a secondary service connection claim in an April 2003 letter. The claims were last readjudicated in July 2007. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes his service treatment records and post-service medical records and examination reports. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided and there has been a complete review of all the evidence. Moreover, as the Board concludes below that the preponderance of the evidence is against the claims, any question as to an appropriate effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine, as articulated in Evans v. Brown, 9 Vet. App. 273 (1996) continues to be binding precedent). 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) (2007). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Right Hip Disability The RO most recently denied the veteran's claim for a right hip disability in a February 1997 rating decision, which found that new and material evidence had not been received to reopen the claim. The veteran was notified of the decision later that month. He did not appeal. Thus, the February 1997 decision is final, and new and material evidence is needed to reopen the claim. See 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, VA must review all of the evidence received since the February 1997 rating decision to determine whether such is new and material. See Hickson, 12 Vet. App. at 251; see also Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008). In his attempt to reopen the claim, the veteran has submitted copies of VA and private medical records, service treatment records and letters from private physicians. Of note, a March 1988 letter from Dr. P. reflects that changes in the right hip suggest avascular necrosis. The Board observes, however, that this is a duplicate of a letter that was previously submitted and considered in the February 1997 rating decision. As such, the evidence is not new. Similarly, the Board notes that many of the other medical records and letters, as well as the service treatment records, submitted by the veteran in conjunction with this appeal were also previously of record and are therefore not new. As for the evidence that was not previously of record, and therefore new, it is not material because it does not tend to show that the veteran's right hip disability began in service or is otherwise related to service. Rather, the evidence only shows continuing treatment for the right hip. Given the above, the Board finds that the evidence added to the record since the February 1997 rating decision, when considered by itself or in conjunction with the evidence previously of record, is either cumulative or redundant or does not relate to an unestablished fact necessary to substantiate the veteran's claim. In the absence of medical evidence suggesting a link between the right hip disability and service, the evidence does not raise a reasonable possibility of substantiating the claim. Therefore, the Board must find that new and material evidence has not been received to reopen the claim of entitlement to service connection for a right hip disability. Carpel Tunnel Syndrome The RO originally denied service connection for carpel tunnel syndrome in a January 1995 rating decision. In a September 2000 decision, the Board denied service connection for the disorder. The veteran was notified later that month. Neither the veteran nor the Board requested reconsideration of the decision, and the veteran did not appeal to the Court. Thus, the September 2000 Board decision is final. See 38 U.S.C.A. §§ 7103(a), 7104, 7252 (West 2002); 38 C.F.R. § 20.1100(a) (2007). Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a); Barnett, 83 F.3d 1380. Accordingly, VA must review all of the evidence received since the September 2000 Board decision to determine whether it is new and material. See Hickson, 12 Vet. App. at 251; see also Boggs, No. 2007-7137. In his attempt to reopen the claim, the veteran has submitted copies of VA and private medical records and service treatment records. Of note, November 1981 private medical records reflect that shrapnel was removed from the right arm and an undated service treatment record reflects a left elbow injury from a fall. The Board observes that these are duplicates of evidence that was previously submitted and considered in the September 2000 Board decision. As such, the evidence is not new. Similarly, the Board notes that many of the other medical records, including service treatment records, were also previously of record and are therefore not new. As for the evidence that was not previously of record, and is therefore new, it is not material because it does not indicate that the veteran's carpel tunnel syndrome began in service or is otherwise related to service. The evidence also does not indicate that the carpel tunnel syndrome is related to his service-connected shell fragment wound of the right arm. Given the above, the Board finds that the evidence added to the record since the September 2000 Board decision, when considered by itself or in conjunction with the evidence previously of record, is either cumulative or redundant or does not relate to an unestablished fact necessary to substantiate the claim. In the absence of competent medical evidence suggesting a link between the carpel tunnel syndrome and service, or the service-connected shell fragment wound of the right arm, the evidence does not raise a reasonable possibility of substantiating the claim. Thus, the Board must find that new and material evidence has not been received to reopen the claim of entitlement to service connection for carpel tunnel syndrome. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER New and material evidence not having been received to reopen the claim of entitlement to service connection for a right hip disability, the appeal is denied. New and material evidence not having been received to reopen the claim of entitlement to service connection for carpel tunnel syndrome, the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs