Citation Nr: 1237953 Decision Date: 11/06/12 Archive Date: 11/16/12 DOCKET NO. 10-13 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted sufficient to reopen the appellant's claim for entitlement to service connection for a mouth injury (trauma) causing the loss of teeth, and, if so, whether service connection may be granted. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service from August 1966 to September 1969. This matter came before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a rating decision of August 2008 by the Department of Veterans Affairs (VA), Regional Office (RO), located in Roanoke, Virginia. The record reflects that the appellant had requested that he be provided the opportunity to present testimony before the Board in conjunction with his appeal. Such a hearing was scheduled but the appellant failed to appear for the hearing. The appellant has not submitted good cause as to why he was not present nor has he requested the opportunity to provide testimony at another hearing. As such, the appeal process will proceed. The Board notes that in the August 2008 rating decision, the RO characterized the issue to reopen the claim of service connection for a dental disability due to trauma of the mouth as that of entitlement to service connection, and finds that, by its silence, the RO apparently conceded that the appellant had submitted sufficient evidence to reopen the claim of entitlement to service connection, which was previously denied in a December 1981 rating decision. However, the United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that, in a matter such as this, the Board has a legal duty to consider the issue of whether new and material evidence has been submitted to reopen the claim, regardless of the RO's actions. See Barnett v. Brown, 8 Vet. App. 1 (1995). Furthermore, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the issue currently before the Board is whether new and material evidence has been received to reopen a claim of entitlement to service connection for a mouth injury (trauma) causing the loss of teeth and has been recharacterized as such on the front page of this action. FINDINGS OF FACTS 1. Service connection for the residuals of trauma to the mouth such that a dental disorder occurred was denied by the RO in a December 1981 rating action on the basis that the medical evidence did not show that the appellant was suffering from trauma to the mouth such that a dental disability occurred. 2. The evidence received subsequent to the December 1981 RO's rating action includes VA medical treatment records and written assertions made by the appellant. This evidence is duplicative or cumulative, and is not so significant that it must be considered in order to decide fairly the merits of the appellant's claim. CONCLUSIONS OF LAW 1. The December 1981 RO's decision denying entitlement to service connection for the residuals of trauma to the mouth such that a dental disorder occurred is final. 38 U.S.C. § 4004(b) (1970); 38 C.F.R. § 19.104 (1981); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). 2. New and material evidence has not been submitted, and the claim of entitlement to service connection for the residuals of trauma to the mouth such that a dental disorder was produced has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Before proceeding with an analysis of the merits of the claim, the Board must examine whether the requirements under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 in accordance with 38 C.F.R. § 3.159(b)(1). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The appellant was provided with this notice in letters and in the statement of the case issued over the course of this appeal. The Board further observes that, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) service member's status; 2) existence of a disability; (3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability. The appellant was provided with this notice information in the letter that was provided to him in November 2007. It is further noted that the Court has also issued a decision that had held that, in the context of a claim to reopen, VCAA notice must include an explanation of: 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that the VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. See Id. In the matter now before the Board, the Board would note that the appellant was given generalized Kent-notice information in the VCAA letter that was sent to him in November 2007. Nevertheless, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Also, the appellant was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. Additionally, the appellant was given notice that the VA would help him obtain evidence but that it was up to the appellant to inform the VA of that evidence. During the course of this appeal, the appellant has proffered numerous documents and statements in support of his claim. It seems clear that the VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. Accordingly, the Board finds that the essential fairness was maintained in this case as the claimant has demonstrated actual knowledge of the evidence, which was needed to establish the claim, and the VA has obtained all relevant evidence. The claimant demonstrated an understanding of the evidence required to substantiate the claim. In sum, the claimant was provided the information necessary such that any defective predecisional notice error was rendered non-prejudicial in terms of the essential fairness of the adjudication. Thus, the Board finds that although there may be a VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As such, the appellant's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Board observes that the VCAA left intact the requirement that a claimant must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 (West 2002). It is specifically noted that nothing in the VCAA shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2011). The Board acknowledges that the regulation regarding new and material evidence was amended. See 66 Fed. Reg. 45630 (Aug. 29, 2001) (38 C.F.R § 3.156(a) (2011)). This amendment to 38 C.F.R. § 3.156(a) applies only to claims to reopen a finally decided claim received on or after August 29, 2001. Because the appellant's claim to reopen the previously denied claim was not received prior to that date, those regulatory provisions do apply. As will be detailed below, the appellant's claim involving new and material evidence has been the subject of an adverse prior final decision. As a result, service connection for the claimed disorder may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). For claims to reopen filed on or after August 29, 2001, such as this one, evidence is considered "new" if it was not previously submitted to agency decision makers. Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29, 2001) (Applicability Dates); 38 C.F.R. § 3.156(a) (2010). "Material" evidence is 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) (2011). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). However, it is the specified bases for the final disallowance that must be considered, in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Id. As reported, the appellant was on active duty from August 1966 to September 1969. In conjunction with his enlistment, the appellant underwent a dental examination (Standard Form 88, Report of Medical Examination, undated). On that form, under Item 44, the appellant had all of his teeth. A discharge examination was performed in August 1969. On that examination report, it was noted that the appellant had one repairable tooth (Tooth 1) and was missing teeth 18, 19, and 30. The service medical treatment records are negative for any type of treatment for any type of trauma to the mouth. Approximately twelve years after his discharge from service, the appellant submitted a VA Form 21-4138, Statement in Support of Claim, dated February 1981. On that form, the appellant requested service connection for a dental disability. It is noted that prior to the submission of this form, the appellant had asserted, in December 1980, that he had been "beaten up" at Fort Carson Army Base in 1967 and that his front teeth were damaged. He admitted that the front teeth did not come out while he was on active duty but came out after he was discharged. He stated that he had been told by a doctor that the trauma of being beaten up had damaged his front teeth and that the injury was the underlying cause for the teeth coming out. Besides his statements, the appellant did not provide any corroborating evidence with respect to his claim. He did not submit any dental records including any statements concerning the front teeth. Moreover, he did not provide any statements from witnesses or other evidence showing that he was beaten up in service, that trauma to the mouth had occurred, or that any current dental disorder was etiological linked to his military service or any incident therein. The RO then reviewed the appellant's service medical treatment records and post-service medical records for the claimed disability. The RO then issued a rating action in December 1981. The RO determined that there was no evidence of trauma to the mouth or teeth while the appellant was on active duty. As such, service connection for a dental disorder could not be granted. The appellant was notified of that action but he did not timely appeal to the Board for review of the RO's action. Thus, this action became final. 38 U.S.C. § 4004(b) (1970); 38 C.F.R. § 19.104 (1981); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). Since the issuance of that RO rating action, the appellant has submitted written statements in support of his claim. The record also contains VA and private medical treatments extending from 1981 to the present. Of note in these records is a VA Medical Discharge Summary of August 1988 that simply indicates that the appellant had complaints about some of his fillings and that he had a partial upper plate. The appellant provided a written statement in which he stated that he now suffered from a dental disorder that was related to service. He proffered additional information in the notice of disagreement when he stated once again that he had been beaten up while on active duty and stationed at Fort Carson. He also stated that he had been treated by a military dentist at Fort Carson for trauma to his front teeth. In essence, the appellant merely repeated the assertions that he made in 1980 and 1981 when he originally applied for benefits. As for the medical evidence that now appears in the claims folder, there is no question that this evidence is new. However, this same evidence does not suggest or insinuate that the appellant may now suffer from a dental disability that can be classified as the residuals of trauma that occurred while the appellant was on active duty. In summary, there is no question that the written statements and the inclusion of the appellant's vast amount of medical treatment records are new evidence. None of this evidence was of record prior to the RO's issuing its December 1981 rating action. Yet, the additional evidence is cumulative and not dispositive. It does not substantiate a previously unestablished fact necessary for the appellant to prevail on his claim. Hence, it is the conclusion of the Board that this evidence is not material, because it does not relate to a previously unestablished fact necessary to substantiate the claim. As such, the Board concludes that the appellant has not submitted evidence that is new and material, and the denial of service connection for the residuals of a mouth injury (trauma) causing the loss of teeth remains final. See generally Manio v. Derwinski, supra. ORDER New and material evidence sufficient to reopen the appellant's claim for entitlement to service connection for the residuals of a mouth injury (trauma) causing the loss of teeth has not been proffered, and the appellant's claim is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs