Citation Nr: 1035554 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 06-14 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for residuals of a hysterectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2009, the issue on appeal was remanded by the Board for further development. The issue is now ready for adjudication. FINDING OF FACT The evidence submitted since the September 1995 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for residuals of a hysterectomy. CONCLUSION OF LAW The September 1995 rating decision is final. New and material evidence to reopen a claim of entitlement to service connection for residuals of a hysterectomy has not been received. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in December 2004 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The RO provided notice regarding how disability ratings and effective dates are determined in March 2006. The Court has held that the VCAA additionally requires that the Veteran be provided with a notice letter which describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial when a claim to reopen is made. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was notified as to evidentiary requirements necessary to reopen a claim in July 2009. While the appellant did not receive full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claim was readjudicated in June 2010. Thus, any timing error was cured and rendered nonprejudicial. 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 in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In May 2009, the Board remanded the issue for proper notice in accordance Kent. In July 2009, in accordance with the Board's remand, the Veteran was provided proper notice. Accordingly, the RO complied with the mandate of the May 2009 Board remand. The Board finds that the notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to this matter have been requested or obtained. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate the claim would not cause any prejudice to the Veteran. The Veteran has not been afforded a VA examination to determine the nature and etiology of her hysterectomy and underlying gynecological conditions. However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds. In so finding the Board finds that determining the etiology of a disability requiring a hysterectomy is not within the competency of a lay person. Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir. 2010). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. New and Material Evidence- Laws and Regulations Once a decision becomes final, absent the submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). 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. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a ). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See generally Elkins v. West, 12 Vet. App. 209 (1999). The United States Court of Appeals for Veterans Claims has held that, in determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). Analysis The Veteran was originally denied entitlement to service connection for a gynecological condition in a September 1995 rating decision. In November 2004, the Veteran submitted a request to reopen the issue and in an April 2005 rating decision, the Veteran was denied service connection for entitlement to service connection for a hysterectomy. The September 1995 rating decision noted that the Veteran's service treatment records were negative for complaint of or treatment for uterine fibroids and salpingitis, and that these conditions were not shown to be related to in-service gynecological conditions. The service medical records did show treatment for abdominal tenderness, trichomonas and monila infections, but no chronic gynecological disorder was demonstrated in-service. After the her September 1995 denial, the Veteran submitted numerous statements in support of her claim, treatment records from the Salem VA medical center dated between August 1995 and September 2004, treatment records from the Bedford Memorial Hospital dated between January 1984 and October 2004 and records from the Social Security Administration in conjunction with her claim for disability benefits as related to her schizophrenic disorder. The Veteran's statements include assertions regarding the cause of her hysterectomy. These statements are neither new nor material. The Veteran previously asserted that hysterectomy was due to in-service infections. Thus, her later statements containing the same assertion are redundant of the evidence of record in September 1995. 38 C.F.R. § 3.156 (a). As before, the appellant, as a lay person untrained in the field of gynecology, cannot offer an opinion linking any in-service symptoms to her post service need for a hysterectomy. While the Salem VA medical records submitted since the September 1995 decision are new, these records are not material. The Veteran's claim was initially denied because there was no showing that an in-service gynecological disorder resulted in her later gynecological conditions or hysterectomy. In order for new evidence to be considered material it must show either an in- service incurrence of her present gynecological conditions, or a link between the Veteran's service and her present hysterectomy and gynecological conditions. The Salem VA medical center records fail to relate to either of these unestablished necessary facts. Similarly, while some of the private treatment records from Bedford Hospital are new, these records also fail to show that the Veteran's hysterectomy was a result of any in-service disease or injury. Finally, while the Social Security Administration records note that the Veteran had gynecological disorders and a hysterectomy, they do not provide any evidence relating residuals of a hysterectomy to service. Accordingly, in this case, the new evidence does not contain the required findings to reopen the claim. The evidence contains no competent medical evidence whatsoever that connects residuals of a hysterectomy to service. The evidence submitted after the Veteran's September 1995 rating decision does not provide a reasonable possibility of substantiating her claim. The record contains neither evidence showing that the Veteran's gynecological disorder is linked to service. Hence, the claim to reopen must be denied. As the Veteran has not carried her initial burden of submitting new and material evidence, the benefit-of-the- doubt rule is not applicable to her petition to reopen. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence has not been received to reopen a claim for service connection for residuals of a hysterectomy. The petition to reopen is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs