Citation Nr: 1040407 Decision Date: 10/27/10 Archive Date: 11/01/10 DOCKET NO. 05-08 357 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right arm disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1969. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the RO which, in pertinent part, denied the Veteran's application to reopen his previously denied claim of entitlement to service connection for a right arm disorder. The Board remanded the issue on appeal in November 2009 for further development of the record. The issue of entitlement to an increased rating for the service-connected residual scar disability of the right axilla has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. In a May 1994 rating decision, the RO denied service connection for a right arm injury; although notified of the denial and his appellate rights in a June 1994 letter, the Veteran did not initiate an appeal. 3. In a June 2004 rating decision, the RO denied the Veteran's request to reopen the claim for service connection for a right arm injury. 4. Evidence associated with the claims file since the May 1994 denial, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right arm injury. CONCLUSIONS OF LAW 1. A May 1994 denial of the claim for service connection a right arm injury is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). 2. As new and material evidence has not been received, the claim for right arm injury is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts have been fulfilled by information provided to the veteran by correspondence dated in January 2004, March 2006, January 2009 and February 2010. Those letters notified the veteran of VA's responsibilities in obtaining information to assist in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in May 2010 . See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). During the pendency of this appeal, the Court, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in March 2006 . In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court 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. A review of the January 2009 and February 2010 VCAA notice letters shows that the RO identified the bases for the denial in the prior decision and provided notice that described what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The letters advised the appellant that his claim was previously denied because evidence failed to show that he was treated for a right arm injury in service. Based on the foregoing, the Board finds the notice requirements pertinent to the issue on appeal have been met. The appellant has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. The Veteran's service treatment records, and VA records have been obtained and associated with his claims file. Furthermore, the appellant has not identified any additional, relevant evidence that has not been requested or obtained. The appellant has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Law and Regulations A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to 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) (2006) The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. See 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Factual Background and Analysis The evidence of record at the time of the May 1994 rating action denying service connection for a right arm injury included the Veteran's service treatment records, private medical records from many physicians addressing the Veteran's neck and shoulder disabilities, without mention of the right arm; VA medical records addressing the same issues, and a report of a June 1992 VA medical examination. In the May 1994 rating action, the RO concluded the service treatment records were negative for a right arm injury, and denied the claim. As the Veteran did not appeal that decision, it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Evidence received since the May 1994 RO decision includes VA medical records, most of which address the Veteran's other disabilities not before the Board at this time. A January 2002 VA medical examination report noted that the Veteran had peripheral neuropathy involving the right arm, secondary to diabetes mellitus, and ulnar nerve neuritis. In a June 2002 addendum to the January 2002 VA medical examination, the examiner noted that the Veteran suffered from chronic neck pain with probable radiculopathy in the early 1990's; he underwent surgery in 1991 for decompression of the right ulnar nerve and in 1993 underwent transposition of the right ulnar nerve due to peripheral pain in the right arm which was thought to be ulnar nerve entrapment or impingement. The examiner then opined that it was more likely that the current complaints relative to sensation in the right upper extremity were due to either or a combination of both the cervical radicular symptoms, or more likely the ulnar nerve entrapment. At the time of the May 1994 rating decision, there was no medical evidence that the Veteran sustained a right injury or disorder in service. While the Veteran has argued that his right arm problems was incurred in service or are secondary to the service connected right axilla scar, the medical evidence associated with the claims file since May 1994, specifically, the June 2002 addendum to the January 2002 VA medical examination report concluded that current complaints relative to sensation in the right upper extremity were due to either or a combination of both the cervical radicular symptoms, or more likely the ulnar nerve entrapment; neither of which are service-connected disabilities. While the evidence submitted since May 1994 is new, this evidence does not address the basis for the May 1994 denial; that there is no evidence of a right arm injury in service; therefore, this evidence does not raise a reasonable possibility of substantiating the claim for service connection. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for hypertension has not been received. As such, the requirements for reopening the claim are not met, and the May 1994 denial of the claim remains final. As the appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been submitted to reopen the claim for service connection for a right arm injury, the claim is denied. _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs