Citation Nr: 1134864 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 07-38 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for residuals of a stroke. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The Veteran served from September 1964 to February 1965, and had subsequent reserve service in the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing with a member of the RO and with a member of the Board; however, he withdrew those requests in October 2008 and August 2010, respectively. In December 2010, the Board remanded this claim for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran did not perfect an appeal with the April 2003 rating decision that denied service connection for cerebrovascular accident and that decision is final. 2. Additional evidence associated with the claims file since the April 2003 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for residuals of a stroke, and/or does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for residuals of a stroke. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. The RO provided notice to the Veteran in June 2005 and December 2010 letters. The December 2010 letter provided notice regarding what information and evidence is needed to substantiate the claim for service connection on a direct and secondary basis, to include the need to submit new and material evidence to reopen the claim, and also advised the Veteran of the basis for the prior denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The letters also advised as to what information and evidence must be submitted by the Veteran, and the types of evidence that will be obtained by VA. The December 2010 letter provided the Veteran with notice of the information and evidence needed to establish a disability rating and an effective date for his claimed disability. This claim was last adjudicated in August 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, private treatment records, and Social Security Administration (SSA) records. In addition, the Board notes that the case was remanded in December 2010 to provide the Veteran with proper VCAA notification. Proper notification was provided in a letter sent to the Veteran that some month. Accordingly, the requirements of the remand were accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision and a substantive appeal is filed within 60 days of the issuance of the statement of the case (or is filed after the issuance of the statement of the case but within one year of the notice of decision). 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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) (2010). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2010). Service connection may additionally be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002). Initially, it is noted that the Veteran has claimed that he had a stroke secondary to diabetes mellitus. Service connection for diabetes mellitus was denied by the Board in December 2010; as such, any claim for service connection as secondary to diabetes mellitus must fail. See 38 C.F.R. § 3.310. The Veteran's claim for entitlement to service connection for residuals of a stroke was previously denied in April 2003, as there was no evidence of a stroke during service or until many years after service, and the stroke was not shown to be a result of his service-connected back disability. The Veteran filed a notice of disagreement with this decision and a statement of the case was issued in February 2004. The Veteran did not file a substantive appeal and the decision became final. 38 C.F.R. §§ 20.200, 20.302, 20.1103. The evidence received since the April 2003 decision includes a February 2005 VA treatment record indicating that the Veteran had a previous cerebrovascular accident, and a private January 2000 discharge summary noting that the Veteran was hospitalized in December 1999 for acute right-sided cerebrovascular accident with left-sided hemiparesis. The new evidence does not indicate that the Veteran's cerebrovascular accident is related to service or to his service-connected back disability. The evidence of record at the time of the April 2003 decision included medical reports noting a cerebrovascular accident in December 1999. Thus, the new evidence merely reiterates a fact already established and is merely cumulative of the evidence of record at the time of the last final denial. Additionally, as the new evidence does not suggest a link between the disorder and service or service-connected disability, it does not relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence is not material. As there is no new evidence showing that the Veteran's residuals of a stroke are related to his service or service-connected back disability, the Board concludes that new and material evidence has not been received to reopen the Veteran's claim. Therefore, the appeal is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER As new and material evidence has not been received, the claim of entitlement to service connection for residuals of stroke is not reopened and the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs