Citation Nr: 1216632 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 09-14 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for Bertolli's syndrome and shortening of the right leg. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to April 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta Maine, which, in pertinent part, found that new and material evidence had not been submitted to reopen the service connection claims on appeal. Jurisdiction over the claims file is currently held by the RO in Detroit, Michigan. In June 2009, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. The Veteran twice rescheduled the hearing until June 2011, when he withdrew the hearing request. The Board will therefore proceed with a decision in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The claims for service connection for Bertolli's syndrome with shortening of the right leg and a back condition were initially denied in a July 1963 Board decision. 2. The evidence received since the Board decision in July 1963 is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen service connection for Bertolli's syndrome with shortening of the right leg. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). 2. New and material evidence has not been received to reopen service connection for a low back disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an April 1962 rating decision, the RO denied entitlement to service connection for Bertolli's syndrome with shortening of the right leg and a back condition. The evidence of record established that the Veteran's disabilities had pre-existed active duty service and had not been aggravated therein. The Veteran did not appeal the July 1963 denial of his claim and the Board decision is final. 38 U.S.C.A. § 7103 (West 2002); 38 C.F.R. §§ , 20.1100, 20.1104 (2011). A claim which has been finally denied in an unappealed rating decision or 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). The evidence received since the July 1963 Board decision includes clinical records from private physicians and various VA facilities, as well as an examination performed in connection with the Veteran's claim for benefits from the Social Security Administration (SSA). This evidence is new, as it was not of record at the time of the July 1963 Board decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. The new treatment records and SSA examination merely document ongoing treatment for the claimed right hip, leg, and back disorders and therefore pertain to the presence of a current disability, an element of service connection that was already established at the time of the prior denial of the claim. The treatment records do not provide any evidence of a link between the Veteran's claimed condition and active duty service or indicate that a pre-existing disability was aggravated during service. In fact, the new treatment records contain numerous statements from the Veteran's physicians that his disabilities existed from the time he was a child and are congenital in nature. For example, in February 1978, the Veteran's VA physician stated that the Veteran had degenerative arthritis secondary to a probable congenital right hip dislocation. Fifteen years later, in January 1993, the Veteran's private doctor noted that his right hip problems began around the age of 10 or 11, probably secondary to a slipped epiphysis. Rather than provide a reasonable possible of substantiating the claim, these medical findings weigh against the claims for service connection. The record also contains several statements from the Veteran reporting that he incurred an injury during active duty that aggravated his pre-existing hip disability. The Veteran has also stated that his low back disability was caused by the same in-service injury. The credibility of the Veteran's statements is presumed for the purposes of determining whether such statements are new and material evidence. Justus v. Principi, 3 Vet. App. 510 (1992). While the Board must presume the credibility of the Veteran's reported history, the statements are cumulative and redundant of contentions at the time of the previous denial of service connection and cannot constitute new and material evidence. In short, the record does not contain any competent evidence of a link between the Veteran's Bertolli's syndrome and back disability and active duty, to include competent evidence that any pre-existing or developmental disorders were aggravated during service. Thus, the Board finds that new and material evidence has not been submitted to allow for reopening of the claims. Duties to Notify and Assist 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, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a veteran 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, 3.326(a) (2011). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) with respect to service connection on the merits was furnished to the Veteran in a February 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the February 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court of Appeals for Veterans Claims (Court) has held that in the context of claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that 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. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the February 2008 VCAA letter, the Veteran was provided notice of the criteria necessary for reopening a previously denied claim. In addition, he was informed of the reason for the prior denial of his claims. VA has therefore substantially fulfilled its specific duties to notify with regard the Veteran's claim to reopen. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including available service treatment records, records of VA treatment, private medical records, and pertinent records from the SSA. The Board notes that the Veteran has not been provided a VA examination, but as the record does not contain new and material evidence indicating that there may be an association between the Veteran's claimed disabilities and active duty service, an examination is not warranted by the duty to assist. 38 U.S.C.A. § 5103A(f) (West 2002) (nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in the provisions of 38 U.S.C.A. § 5108). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER New and material evidence not having been submitted, reopening of the claim for Bertolli's syndrome with shortening of the right leg is denied. New and material evidence not having been submitted, reopening of the claim for a low back disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs