Citation Nr: 1031087 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 07-21 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Togus Regional Office in Augusta, Maine THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a left arm/shoulder disability as secondary to the residuals of a gunshot wound of the right upper extremity, and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to March 1978 and from September 1983 to March 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. In August 2009, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. When the case was before the Board in November 2009, it was remanded for further development. It has since been returned to the Board for further appellate action. FINDINGS OF FACT 1. Entitlement to service connection for a left arm/shoulder disability was denied in an unappealed June 2000 rating decision. 2. The evidence received since the June 2000 decision is cumulative or redundant of that previously of record or is not sufficient, when considered with the evidence previously of record, to raise a reasonable possibility of substantiating the claim for service connection for left arm/shoulder disability. CONCLUSION OF LAW New and material evidence has not been received to reopen a claim for service connection for a left arm/shoulder disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In this case, the Veteran was provided all required notice in a January 2007 letter. Moreover, the undersigned informed the Veteran at the videoconference hearing that he should submit medical evidence linking his left arm/shoulder disability to his service-connected right upper extremity disability. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim to reopen would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that service treatment records are of record and all post-service medical evidence identified by the Veteran has been obtained. Although VA is not obliged to provide an examination or obtain an opinion in response to a claim to reopen if new and material evidence has not been presented, the record reflects that a VA examination to determine whether the Veteran's left arm/shoulder disability is related to his service- connected disability of the right upper extremity was provided. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim to reopen. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of this claim by the originating agency were harmless. Accordingly, the Board will address the merits of the claim to reopen. Legal Criteria Generally, a claim which has been denied in an unappealed 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously received by 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis In an unappealed rating decision dated in June 2000, the RO denied service connection for a left shoulder and arm disability as secondary to service-connected disability of the right upper extremity. The claim was denied based on the absence of any medical evidence of a nexus between the service-connected disability of the right upper extremity and the claimed left shoulder and arm disability. The medical evidence added to the record since that decision is essentially cumulative in nature in that it continues to show the presence of the claimed disability many years after service, but includes no evidence of a nexus between the left arm/shoulder disability and the service-connected disability of the right upper extremity. Moreover, the report of a June 2007 VA medical examination reflects that the examiner provided an opinion against the claim after reviewing the record and examining the Veteran. The Veteran's statements and testimony have also been added to the record. The Board has carefully considered those statements testimony and acknowledges that the Veteran is competent to state that he has had to do more things with his left arm and shoulder as a result of his service-connected right upper extremity disability; however, whether the over use of his left arm and shoulder caused or aggravated his left arm and shoulder disability is a medical question that the Veteran is not competent to answer. Therefore, the Veteran's statements and testimony are not sufficient to raise a reasonable possibility of substantiating the claim. Therefore, the Board must conclude that reopening of the Veteran's claim is not in order. ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a left arm/shoulder disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs