Citation Nr: 1301136 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 11-04 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for arthritis of the right arm. 2. Entitlement to service connection for spondylotic myelopathy of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active duty from January 1948 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a cervical disorder is addressed in the REMAND portion of the decision below and [is/are] REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A May 2003 rating decision denied service connection for arthritis of the right arm, on the basis that there was no evidence of record showing that the Veteran had arthritis of the right arm which was related to service. 2. The evidence added to the record since May 2003 is cumulative. CONCLUSIONS OF LAW 1. The May 2003 rating decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been received to reopen service connection for arthritis of the right arm. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and respond by providing the appellant 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 Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in April 2007, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claims of entitlement to service connection and his application to reopen, as well as the legal criteria for entitlement to such benefits. Additionally, the letter from VA to the Veteran explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claims. The Veteran has not been examined by VA in connection with his application to reopen service connection for arthritis of the right arm. The Veteran has petitioned VA to reopen previously denied claim for service connection of arthritis of the right arm; however, as will be explained below, new and material evidence in support of this claim has not been received, and as such, no examination is required. 38 C.F.R. § 3.159(4)(c)(iii). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's application to reopen. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria to Reopen Service Connection of Right Arm Arthritis In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." Under the applicable version of 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). Analysis of Application to Reopen Service Connection of Right Arm Arthritis The Veteran's claim for service connection for arthritis of the right arm was denied in a May 2003 rating decision on the basis that there was no current diagnosis of disability. In the May 2003 rating decision, the RO pointed out that the Veteran had not provided any evidence that he had arthritis of the right arm during service or within one year of discharge from service; the RO also pointed out that the Veteran had not provided any evidence of current arthritis of the right arm. Service treatment records and VA examination reports from 1982 and 2003 do not show any arthritis of the right arm, nor any related complaints, treatment, or diagnoses. The Veteran was notified of the 2003 decision via a letter dated in June 2003. He did not submit a notice of disagreement, and no evidence was received within the year following that letter such that the provisions of 38 C.F.R. § 3.156(b) would apply; therefore, the May 2003 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Since the RO's May 2003 decision, the Veteran has submitted additional evidence in support of his application to reopen. In several statements, the Veteran asserts that he has right arm arthritis that is related to his service; the Veteran alleges an additional injury to the right arm (he is currently service-connected for scars of the right hand and wrist with limitation of motion of the left little finger due to injury wherein he put his right hand through a glass door). In support of this assertion, he points to post-service VA and private treatment records. In essence, at the time of the prior denial, the record included the Veteran's claim and no competent evidence of arthritis or of a nexus to service. The medical evidence added to the record since May 2003 is not new and material. There is still no current diagnosis of a disability manifested by right arm arthritis. In addition, there is no evidence of a nexus to service. VA treatment records dated August 2007 through May 2008 indicate that the Veteran reported that he injured his right side when he was thrown for a tank in service, but do not show any right arm arthritis. In other VA treatment records, dated in 2009 and 2010, he alleges injuring his right side when he fell from a jeep in service, and at a June 2010 VA scars examination, he alleges that his service-connected scars are from a shrapnel wound; none of these records show complaints, treatment, or diagnosis related to right arm arthritis. Private treatment records from Johns Hopkins contain no information relevant to the claim, although a diagnosis of carpal tunnel syndrome is noted in a treatment record. Private treatment records from Hunt Valley Physical Therapy show complaints of right-sided upper extremity weakness related to undergoing anterior cervical fusion, but again, do not show complaints, treatment, or a diagnosis related to right arm arthritis. As such, there is no medical evidence demonstrating that he currently has arthritis of the right arm. The evidentiary defect that existed at the time of the prior denial remains. The Veteran's statements reiterate his previous contention of entitlement to service connection and thus constitute cumulative evidence. The Veteran's current application involving arthritis of the right arm is grounded upon the same factual bases as his prior claim, which was previously denied by the RO in a May 2003 decision. In conclusion, the additional evidence considered in conjunction with the record is not new and material. In short, the treatment records and statements are essentially redundant of evidence of record at the May 2003 rating decision. Therefore, new and material evidence to reopen the Veteran's previously denied claim for service connection for arthritis of the right arm has not been received subsequent to the last final RO decision in May 2003. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As such, the Veteran's claim is not reopened. ORDER The application to reopen the claim for service connection for right arm arthritis is denied. REMAND The issue of entitlement to service connection for a cervical disorder has been certified for appeal. The AOJ has appeared to accept that the Veteran had combat. See combat code in the Legacy codes of the rating decision. The record also includes a statement from Dr. H which appears to link a cervical disability to combat. This evidence is adequate to warrant an examination. In addition, the appellant asserted that he had multiple years of National Guard service. Such records should be obtained. Accordingly, the case is Remand for the following: 1. The AOJ should attempt to obtain any outstanding National Guard records. 2. After obtaining the above records, the AOJ should schedule the appellant for a VA examination. In light of 38 U.S.C.A. § 1154(b), the examiner should accept that there was an in-service injury. It is requested that the examiner determine whether there is any relationship between the post service diagnosis of myelopathy of the cervical spine and any in-service event, to include the reported in-service injury. 3. If upon completion of the requested action the claim remains denied, the case should be returned to the Board after compliance with appellate procedure. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs