Citation Nr: 0814043 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-14 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence have been submitted to reopen a claim of entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The veteran served on active duty from December 1956 to December 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. An August 1998 rating decision denied the veteran's application to reopen the claim of entitlement to service connection for a back disability. The veteran did not file a notice of disagreement. 2. Evidence associated with the claims file subsequent to the August 1998 rating decision is not material and does not raise a reasonable possibility of substantiating the veteran's claim of entitlement to service connection for a back disability. CONCLUSION OF LAW Evidence submitted to reopen the claim of entitlement to service connection for a back disability 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. §§ 3.104, 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in March 2005 that fully addressed all four notice elements and the notice requirements for a claim to reopen. The March 2005 letter provided to the veteran included the criteria for reopening the previously denied claim of entitlement to service connection, the criteria for establishing service connection, and information concerning why the claim was previously denied. This letter also informed the veteran of his and VA's respective duties for obtaining evidence. The VCAA letter requested the veteran to provide any evidence in his possession and he was informed that it was ultimately his responsibility to ensure that VA received any evidence not in the possession of the Federal government. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case dated June 2006 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). For these reasons, it is not prejudicial to the veteran for the Board to proceed in deciding this appeal as the timing error did not affect the essential fairness of the adjudication. Accordingly, the Board finds that the requirements of VCAA regarding the duty to notify have been met and that VA has no further duty prior to Board adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the veteran's claims, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. With regard to the duty to assist, the claims file contains a service orthopedic consult report dated August 1958, an in-service sick slip, private treatment records, letters from his treating physicians and VA treatment records. The VA found no service medical records on file for the veteran at the National Personnel Records Center in St. Louis, Missouri (NPRC) and it is presumed the records were destroyed in the 1973 fire at NPRC. In such situations, VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Additionally, the claims file contains the veteran's statements in support of his claim, letters from his employers, and a letter from a prospective employer. There is no other indication in the file that there are additional relevant records that have not yet been obtained. Based on the foregoing, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. II. New and Material Evidence An unappealed Board decision in February 1988 denied the veteran's claim of entitlement to service connection for a back disability on the basis that a low back disorder was not incurred in or aggravated by service and any low back disorder which the veteran incurred in service was acute, transitory, and resolved prior to the veteran's separation from service. The veteran filed several applications to reopen the claim with the last unappealed rating decision in August 1998. The relevant evidence of record at the time of the August 1998 decision consisted of statements made by the veteran, a May 1987 regional office hearing transcript, letters from private physicians, private treatment records, a letter from Columbus Products Company, a letter from Columbus Public Schools, a letter from Westinghouse offering disability benefits, a personnel report from Westinghouse, an in-service sick slip and an orthopedic consultation from service. The veteran did not file a notice of disagreement with the August 1998 rating decision. Therefore, the August 1998 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 39 C.F.R. § 20.1103. A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A 5108. "New" evidence means existing evidence not previously submitted to the 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. 39 C.F.R. § 3.156. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Competency of new evidence, however, is not presumed. Id. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). In October 2004, a claim to reopen the issue of entitlement to service connection for a back disability was received. Evidence of record subsequent to the August 1998 rating decision include statements made by the veteran, a letter from Columbus Products Company, a letter from Columbus Public Schools, a letter from Westinghouse offering disability benefits, a personnel report from Westinghouse, an in-service sick slip, an orthopedic consultation from service, Cleveland, Ohio VA outpatient treatment records and a May 2006 DRO hearing transcript. The statements made by the veteran, a letter from Columbus Products Company, a letter from Columbus Public Schools, a letter from Westinghouse offering disability benefits, a personnel report from Westinghouse, an in-service sick slip, and an orthopedic consultation report from service are not new. This evidence is cumulative and redundant of the evidence of record prior to the final unappealed rating decision in August 1998. The May 2006 DRO hearing transcript is also not new evidence. The transcript consisted of the veteran restating the events that caused his claimed injury in service and asserting that his back has gotten worse over the years. However, the veteran's testimony did not provide any new information regarding a back disability in service or the relation of his back injury to his current physical problems. The Cleveland, Ohio VA outpatient treatment records are new in that the evidence was not of record at the time of the August 1998 decision. However, the VA outpatient treatment records do not show any complaints or treatments regarding the veteran's back. Thus, the Board finds that the new evidence is not material because it does not substantiate a fact necessary to establish that the veteran's back disability was incurred in or aggravated in service. In sum, the evidence received subsequent to the August 1998 rating decision was duplicative, did not relate to an unestablished fact necessary to substantiate the claim, and did not raise a reasonable possibility of substantiating the claim. The newly submitted evidence did not show that the veteran's claimed back disability is related to his military service. Accordingly, having determined that new and material has not been submitted, the veteran's claim for service connection for a back disability is not reopened. ORDER New and material evidence having not been submitted, the claim to reopen the issue of entitlement to service connection for a back disability is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs