Citation Nr: 1007642	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  06-23 691	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Whether new and material evidence has been presented to 
reopen the claim of service connection for residuals of a 
left elbow fracture. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Motrya Mac, Counsel




INTRODUCTION

The Veteran, who is the appellant, served on active duty from 
October 1966 to September 1968.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision, dated in January 2006, of the 
Department of Veterans Affairs (VA) Regional Office (RO, an 
Agency of Original Jurisdiction) in Waco, Texas.  

In November 2007 and in January 2008, the Veteran filed 
claims for dependency allowance, which is referred to the RO 
for appropriate action. 

In August 2009, the Board remanded the claim for further 
development.  As the requested development has been 
completed, no further action to ensure compliance with the 
remand directive is required.  Stegall v. West, 11 Vet. App. 
268 (1998).

In February 2010, the Veteran submitted additional evidence 
without waiving the right to have the evidence initially 
considered by an Agency of Original Jurisdiction.  As the 
evidence relates to facts already of record, the evidence 
does not have a bearing on the claim to reopen and referral 
to an Agency of Original Jurisdiction under 38 C.F.R. 
§ 20.1304(c) is not required. 


FINDINGS OF FACT

1. In a rating decision in April 1984, the RO denied service 
connection for residuals of a left elbow fracture; after the 
Veteran was notified of the adverse determination, he did not 
perfect his appeal of the denial of the claim and the rating 
decision became final.

2. The additional evidence presented since the rating 
decision in April 1984 is either redundant or cumulative of 
evidence previously considered. 


CONCLUSIONS OF LAW

1. The rating decision in April 1984 by the RO, denying 
service connection for residuals of a left elbow fracture, 
became final.  38 U.S.C.A. § 7105(c) (West 2002).

2. New and material evidence has not been presented to reopen 
the claim of service connection for residuals of a left elbow 
fracture.  38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 
C.F.R. § 3.156 (2009).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R. § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA 
receives a complete or substantially complete application for 
benefits, it will notify the claimant of (1) any information 
and medical or lay evidence that is necessary to substantiate 
the claim, (2) what portion of the information and evidence 
VA will obtain, and (3) what portion of the information and 
evidence the claimant is to provide.  The notification 
requirements are referred to as Type One, Type Two, and Type 
Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 
1696 (2009).

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).



In a new and material evidence claim, the VCAA notice must 
include the evidence and information that is necessary to 
reopen the claim and the evidence and information that is 
necessary to establish the underlying claim for the benefit 
sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided post-adjudication VCAA notice by letter, 
dated in October 2009.  The notice included the type of 
evidence needed to reopen the claim of service connection, 
that is, new and material evidence, namely, evidence not 
previously considered, which was not redundant or cumulative 
of evidence previously considered and pertained to the reason 
the claim was previously denied.  The notice included the 
type of evidence needed to substantiate the underlying claim 
of service connection, namely evidence that the preexisting 
left elbow disability was permanently aggravated by service.

The Veteran was notified that VA would obtain VA records and 
records of other Federal agencies and that he could submit 
other records not in the custody of a Federal agency, such as 
private medical records.  The notice included the general 
provisions for the effective date of the claim and for the 
degree of disability assignable. 

As for content of the VCAA notice, the document substantially 
complied with the specificity requirements of Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (identifying evidence to 
substantiate a claim and the relative duties of VA and the 
claimant to obtain evidence); of Charles v. Principi, 16 Vet. 
App. 370 (2002) (identifying the document that satisfies VCAA 
notice); of Kent v. Nicholson, 20 Vet. App. 1 (2006) (new and 
material evidence necessary to reopen a service connection 
claim element of new and material evidence); and of Dingess 
v. Nicholson, 19 Vet. App. 473 (notice of the elements of the 
claim).  



As the VCAA notice came after the initial adjudication, the 
timing of the notice did not comply with the requirement that 
the notice must precede the adjudication.  The procedural 
defect was cured as after the RO provided substantial 
content-complying VCAA notice, the claim was readjudicated as 
evidenced by the supplemental statement of the case, dated in 
December 2009.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. 
Cir. 2007) (Timing error cured by adequate VCAA notice and 
subsequent readjudication without resorting to prejudicial 
error analysis.). 

Duty to Assist

Under the duty to assist, a VA medical examination or medical 
opinion is not authorized unless new and material evidence is 
presented.  38 C.F.R. § 3.159(c)(4)(iii).  

As the Veteran has not identified any additional evidence 
pertinent to the claim and as there are no additional records 
to obtain, the Board concludes that no further assistance to 
the Veteran in developing the facts pertinent to the claim is 
required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Application to Reopen the Claim of Service Connection 

Although a prior unappealed rating decision of the RO is 
final, it may nevertheless be reopened if new and material 
evidence is presented.  38 U.S.C.A. § 5108.

As the Veteran's application to reopen the claim of service 
connection was received after August 2001, the current 
regulatory definition of new and material evidence applies.



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).

Regardless of how the RO ruled on the question of reopening, 
the Board must decide the matter on appeal, because reopening 
is a threshold jurisdictional question for the Board.  
Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) 
(reopening after a prior unappealed RO denial).

Evidence is presumed credible for the purposes of reopening a 
claim.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The 
presumption is rebuttable when the evidentiary assertion is 
inherently incredible.  See King v. Brown, 5 Vet. App. 19, 21 
(1993) (evidentiary assertions are presumed true except when 
the evidentiary assertion is inherently incredible or when 
the fact asserted is beyond the competence of the person 
making the assertion). 

Evidence Previously Considered

In the rating decision in April 1984, the RO denied service 
connection for residuals of a left elbow fracture, because 
the condition pre-existed service and the condition was not 
permanently aggravated by service.  

The evidence at the time of the last prior final denial in 
April 1984 is summarized below.  



The service treatment records show that on the report of 
medical history in January 1966 the examiner noted that the 
Veteran fractured his left elbow when he was six years old.  
In January 1967, the Veteran complained of pain in the left 
elbow.  In March 1967, he complained of pain in the left 
elbow with use.  History included a fracture at age 6.  There 
was some limitation of motion.  X-rays for a symptomatic old 
fracture revealed an old fracture of the humeral epicondyle, 
which was well-healed, and a calcific density adjacent to the 
humerus.  And the Veteran was placed on a permanent physical 
profile.  In May 1967, the Veteran complained of some 
sensation changes in the left arm.  On separation 
examination, there was limitation of motion of the left 
elbow.  

After service, on VA examination in April 1984, the Veteran 
stated he injured his left elbow on an obstacle course in 
service, sustaining an elbow fracture.  There was limitation 
of motion.  X-ray shows a deformity about the distal humerus 
and left elbow.  The diagnosis was residuals of a left elbow 
fracture. 

Additional Evidence

The evidence of record since the last prior final denial in 
April 1984 consists of the evidence presented below.  

In several statements in 2005, the Veteran stated that he 
broke his elbow during basic training and was treated for the 
injury during advanced individual training and he has had 
problems with his left elbow since service.  This evidence is 
not new and material as it is cumulative, that is, supporting 
evidence of previously considered evidence, namely, the 
Veteran's account of the in-service injury on VA examination 
in April 1984.  And cumulative evidence does not meet the 
regulatory definition of new and material evidence under 38 
C.F.R. § 3.156.  



To the extent the Veteran's statements are offered as 
evidence of medical causation, where, as here, there is a 
question of medical causation, where a lay assertion on 
medical causation is not competent evidence, Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence 
is required to substantiate the claim.  Competent medical 
evidence means evidence provided by a person who is qualified 
through education, training, or experience to offer a medical 
diagnosis or opinion.  38 C.F.R. § 3.159.  

As a lay person the Veteran is not qualified through 
education, training, and expertise to offer an opinion on 
medical causation, where a lay assertion on medical causation 
is not competent evidence.  To this extent, the statements 
are not competent evidence and the statements may not be 
considered as evidence. 

VA medical records from 2001 to 2007 document the Veteran's 
history of a left elbow injury during service.  X-rays in 
February 2005 showed residuals of an old fracture and 
moderate degenerative changes.  X-rays in January 2006 showed 
a nonunion of a left medial epicondyle fracture of the 
humerus with some moderate degenerative changes.  The 
assessment was nonunion of a left distal humerus fracture.  
This evidence is not new and material as it is cumulative, 
that is, supporting evidence of previously considered 
evidence, namely, the Veteran's account of the in-service 
injury on VA examination in April 1984.  And cumulative 
evidence does not meet the regulatory definition of new and 
material evidence under 38 C.F.R. § 3.156.  

Copies of service treatment records which show the Veteran in 
1967 was treated for left elbow pain and placed on physical 
profile.  This evidence is redundant.  Redundant evidence is 
evidence previously considered and does not meet the 
regulatory definition of new and material evidence under 38 
C.F.R. § 3.156(a).






For the above reasons, the additional evidence is not new and 
material.  Therefore, the claim of service connection for 
residuals of a left elbow fracture is not reopened.  As the 
claim is not reopened, the benefit-of-the-doubt standard of 
proof does not apply.  Annoni v. Brown, 5 Vet. App. 463, 467 
(1993).


ORDER

As new and material evidence has not been presented, the 
claim of service connection for residuals of a left elbow 
fracture is not reopened, and the appeal is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs