Citation Nr: 0814182 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-32 898A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for bilateral pes planus. 3. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a lumbar spine injury with degenerative disc disease. 4. Whether new and material evidence has been received to reopen a claim for service connection for a skin condition claimed as a rash on chest and back. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The appellant served on active duty from June 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, inter alia, declined to reopen the veteran's claims for service connection for bilateral hearing loss, bilateral pes planus, residuals of a lumbar spine injury with degenerative disc disease and a skin condition claimed as a rash on chest and back. The Board notes that the veteran's representative indicated, in his April 2008 Appellant's Brief, that the issue of reopening a claim of service connection for otitis media is still on appeal. However, as this issue was reopened and service connection granted in a November 2007 rating decision as part of service connection for cluster headaches, this issue is no longer on appeal. The Board has a legal duty to address the "new and material evidence" requirement regardless of the actions of the RO. If the Board finds that no new and material evidence has been submitted it is bound by a statutory mandate not to consider the merits of the case. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). The issue of whether new and material evidence has been received to reopen a claim for service connection for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A July 2001 rating decision denied the veteran's claim for service connection for bilateral hearing loss. The veteran did not file a notice of disagreement (NOD) and the decision is final. 2. Evidence added to the record since the July 2001 decision does not relate, by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the veteran's service connection claim for bilateral hearing loss. 3. A July 2001 rating decision declined to reopen a claim for service connection for residuals of a lumbar spine injury with degenerative disc disease. The veteran did not file a notice of disagreement (NOD) and the decision is final. 4. Evidence added to the record since the July 2001 decision does not relate, by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the veteran's service connection claim for residuals of a lumbar spine injury with degenerative disc disease. 5. A July 2001 rating decision denied the veteran's claim for service connection for a skin condition, claimed as a rash on the chest and back. The veteran did not file a notice of disagreement (NOD) and the decision is final. 6. Evidence added to the record since the July 2001 decision does not relate, by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the veteran's service connection claim for a skin condition, claimed as a rash on the chest and back. CONCLUSIONS OF LAW 1. The July 2001 rating decision, which denied the veteran's service connection claim for bilateral hearing loss, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 2. New and material evidence has not been received since the July 2001 rating decision sufficient to reopen the veteran's claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The July 2001 rating decision, which declined to reopen the veteran's service connection claim residuals of a lumbar spine injury with degenerative disc disease, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 4. New and material evidence has not been received since the July 2001 rating decision sufficient to reopen the veteran's claim for service connection for residuals of a lumbar spine injury with degenerative disc disease. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 5. The July 2001 rating decision, which denied the veteran's service connection claim for a skin condition, claimed as a rash on the chest and back, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). 6. New and material evidence has not been received since the July 2001 rating decision sufficient to reopen the veteran's claim for service connection for a skin condition, claimed as a rash on the chest and back. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 her or his 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 AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the duty to notify was satisfied, collectively, by way of a letters sent to the appellant in January 2004, March 2004, September 2006 and July 2007 that fully addressed all four notice elements. The letters informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. 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 September 2007 rating decision and a November 2007 supplemental statement of the case issued after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the notice letter provided to the appellant in September 2006 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the element(s) required to establish service connection that were found insufficient in the previous denial. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service medical records, VA medical records and examination reports, non-VA medical records and lay statements have been associated with the claims file. It should be noted that the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii). Significantly, neither the appellant nor his or her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. 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). Second, if VA determines that the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not new and material, the inquiry ends and the claim cannot be reopened. In determining whether the evidence is new and material, the credibility of the newly presented evidence is presumed. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). The Board is required to consider all of the evidence received since the last disallowance, in this case, since the decision dated in July 2001. Hickson v. West, 12 Vet. App. 247, 251 (1999). The evidence received by VA since the July 2001 decision is as follows: private medical records showing treatment from June 2000 to June 2002 from Dr. D.V.; private medical records showing treatment from January 2003 to March 2003 from Dr. C.L.; private medical records showing treatment from October 2002 to March 2004 from Leonard Rheumatology Clinic; VA medical records showing treatment from October 1996 to September 2007, and November 2007 VA examination reports from his joints, skin and audiology examinations. Since these medical records and reports are not redundant of any other evidence previously considered and were not part of the record at the time of the July 2001 decision, they are considered new evidence. New and Material Evidence - bilateral hearing loss In a July 2001, the RO denied the veteran's claim for service connection for bilateral hearing loss. At that time, the RO noted that a hearing loss was not shown in service and that the veteran did not have a hearing loss under VA regulations. Since the veteran did not file a timely NOD, the decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The veteran filed to reopen the claim in October 2003 and has perfected an appeal to the Board. The new evidence regarding the veteran's service connection claim for hearing loss consists of the VA audiology report from his November 2007 examination. While this is new, it does not relate to an unestablished fact necessary to substantiate the veteran's claim, and is therefore not material. The veteran's claim was denied in July 2001 because he was not shown to have a hearing loss for VA purposes in service, and did not currently have a hearing loss for VA purposes that was linked to his period of active duty. The November 2007 examination reflected that the veteran still does not have a hearing loss for VA purposes. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2007). The veteran's November 2007 audiology examination results do not meet these criteria. In addition, even though the report shows that the examiner noted that he had a mild hearing loss in his right ear, the examiner opined that it was not related to his time in service. Since there is no evidence that the veteran has a current hearing loss under VA regulations that is related to service, this evidence is not material and is insufficient to reopen the veteran's claim for service connection for hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). New and Material Evidence - residuals of a lumbar spine injury with degenerative disc disease The veteran was initially denied service connection for degenerative disc disease of the lumbar spine in a May 1993 rating decision because there was no evidence that this disorder was incurred in service. In July 2001, the RO declined to reopen the veteran's claim for service connection for residuals of a lumbar spine injury with degenerative disc disease. At that time, the RO found that no new and material evidence has been presented in order to reopen the veteran's claim. Since the veteran did not file a timely NOD, the decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The veteran filed to reopen the claim in October 2003 and has perfected an appeal to the Board. The new evidence regarding the veteran's service connection claim for residuals of a lumbar spine injury with degenerative disc disease consists of VA and private medical records showing treatment for lumbar spine pain and degenerative disc disease, and the November 2007 rating decision which reflects a diagnosis of degenerative lumbar disc disease. While these records are new, they do not relate to an unestablished fact necessary to substantiate the veteran's claim, and are therefore not material. The veteran's claim was initially denied because there was no evidence that his lumbar spine degenerative disc disease was incurred in service. The treatment records now in the claims file do not show a link between his time in service and his lumbar spine degenerative disc disease, and the November 2007 examination report reflects that the examiner noted that there was no documentation in the claims file that his back disorder originated in service, and opined that it is less likely than not that the veteran's current symptoms were service related. Since the new evidence does not show that the veteran's lumbar spine degenerative disc disease is related to service, this evidence is not considered material and is insufficient to reopen the veteran's claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). New and Material Evidence - Skin condition, claimed as rash on chest and back In a July 2001, the RO denied the veteran's claim for service connection for a skin condition, claimed as rash on chest and back. At that time, the RO noted that the veteran had an acute in-service condition of the chest and trunk, but that there was no evidence of a current skin disorder on his chest and trunk. Since the veteran did not file a timely NOD, the decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). The veteran filed to reopen the claim in October 2003 and has perfected an appeal to the Board. The new evidence regarding the veteran's service connection claim for a skin condition, claimed as rash on chest and back consists of the report from his November 2007 VA skin examination. While this is new, it does not relate to an unestablished fact necessary to substantiate the veteran's claim, and is therefore not material. The veteran's claim was denied in July 2001 because he was not shown to have a current skin condition on his chest and trunk. The November 2007 examination reflected that the veteran still does not have a current skin condition on his chest or trunk. Since none of the medical records now in the claims file reflect that the veteran has a current skin disorder on his chest and trunk, this evidence is not considered material and is insufficient to reopen the veteran's claim for service connection for a skin condition, claimed as rash on chest and back. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). As to the lay statements by the veteran regarding these disorders, they cannot be accepted as competent evidence to the extent that they purport to establish a medical nexus or the presence of a disability, see Espiritu v. Derwinski, 2 Vet. App. 492, or provide a sufficient basis for reopening the previously disallowed claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1995). Because none of the evidence submitted since July 2001 raises a reasonable possibility of substantiating the claims, it is not new and material evidence. The Board therefore must deny the application to reopen a claim of entitlement to service connection for hearing loss, pes planus, residuals of a lumbar spine injury with degenerative disc disease and a skin condition claimed as a rash on chest and back. Accordingly, the benefit sought on appeal must be denied. ORDER As new and material evidence has not been received, the claim of entitlement to service connection for bilateral hearing loss, is not reopened and the appeal is denied. As new and material evidence has not been received, the claim of entitlement to service connection for residuals of a lumbar spine injury with degenerative disc disease, is not reopened and the appeal is denied. As new and material evidence has not been received, the claim of entitlement to service connection for a skin condition claimed as a rash on chest and back, is not reopened and the appeal is denied. REMAND In July 2001, the RO denied the veteran's claim for service connection for bilateral pes planus. The RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). Presently, the veteran is seeking to reopen his previously denied claim for service connection for bilateral pes planus, but has not received notice informing him of the bases upon which his prior claim was denied as required under the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006). A September 2006 letter informed the veteran of what was found in service concerning his pes planus, but it did not explain to the veteran precisely why his service connection claim for a preexisting condition was denied. Specifically, the veteran should be informed that there was no evidence of injury to the feet or aggravation of the feet while on active duty and that, although the veteran had complaints and received treatment, no permanent aggravation was found. Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the entire file and ensure for the issue on appeal that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007) is fully satisfied. In particular, VA must send the veteran a corrective notice that informs him of the bases upon which his prior claim was denied and the evidence necessary to reopen the claim under the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006. Specifically he should be advised that there was no evidence of injury to the feet or aggravation of the feet while on active duty and that, although the he had complaints and received treatment, no permanent aggravation was found and the evidence shows that the bilateral pes planus existed prior to service. The AOJ should invite the veteran to submit any pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant. 2. After completion of the above, the AOJ should readjudicate the veteran's claim. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. The purposes of this remand are to comply with due process of law and to further develop the appellant's claim. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case. The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs