Citation Nr: 1301922	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  10-22 138	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Whether new and material evidence has been submitted to reopen the claim of service connection for a disorder manifested by left-sided body pain, to include a pinched nerve in the neck and to include as due to an undiagnosed illness.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel


INTRODUCTION

The Veteran served on active duty from September 1988 to December 1991 and from April 1997 to March 1999.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO) which denied the issues on appeal.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2012.  A transcript of that hearing is of record and associated with the claims folder.

The issue of entitlement to service connection for a psychiatric disorder, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a June 2005 rating decision, the RO denied reopening the Veteran's claim of service connection for left-sided body pain, to include degenerative disc/joint disease of the cervical spine, and including as due to undiagnosed illness.  The Veteran did not initiate a timely appeal for this matter, and no new and material evidence was received within one year of the notification of that denial.

2.  Evidence associated with the claims file since the June 2005 denial, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to substantiate the service connection claim for a left-sided pain disorder, is cumulative or redundant of evidence previously received, and does not raise a reasonable possibility of substantiating the claim.


CONCLUSION OF LAW

As new and material evidence has not been received since the RO's June 2005 rating decision, the criteria to reopen the Veteran's claim of entitlement to service connection for a left-sided pain disorder have not been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.104, 20.302, 20.1103 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

Before addressing the merits of the new and material evidence issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  38 U.S.C.A. § 7261(b)(2).  In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless.  However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and 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, VA 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.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

In this case, a notice letter was provided to the Veteran by the RO in May 2009 which included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim of entitlement to service connection for a pinched nerve on the left side of the neck was previously denied.

However, to the extent that the RO and AMC did not clearly notify the Veteran of the criteria for reopening a previously denied claim or what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial, the Board finds any such error in notification to be harmless.  The Veteran was afforded a meaningful opportunity to participate in the adjudication of his claim.  

The Board observes that during the pendency of the claim, the Veteran has been represented by an accredited representative, who is well aware of the requirements of the VCAA and the elements needed to substantiate the Veteran's claim, and has submitted argument during the course of this appeal.  Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (holding that VCAA notice error was not prejudicial because the appellant demonstrated actual knowledge of the information and evidence necessary to substantiate his claim by way of the arguments made to the RO).  In addition, the Veteran's testimony to the undersigned showed that he clearly had actual knowledge of what was required to reopen his previously denied claim.  He understood the need to submit new and material evidence as well as the type of evidence he needed to provide.

As the record shows that the Veteran has actively participated in presenting arguments in support of his new and material evidence claim for service connection for a left-sided pain disorder, and has in fact expressed his understanding of the information and evidence necessary to substantiate this issue, the Board concludes that any 38 U.S.C.A. § 5103(a)-complaint notice error in this case did not preclude him from effectively participating in the processing of his claim.

Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). 

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.  Service treatment records, service personnel records, and relevant VA treatment records pertaining to his claim have been obtained and associated with his claims file.  Further, the Veteran submitted written statements of his contentions and provided testimony before the undersigned in March 2012.  

VA need not conduct an examination with respect to the claim of whether new and material evidence has been received to reopen previously denied claim of entitlement to service connection for a disorder manifested by left-sided body pain because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured.  Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened).  See also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.).  Therefore, a remand for a VA examination is not warranted for this matter.  38 C.F.R. § 3.159(c)(4)(iii).

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

New and Material Evidence - Service Connection for Left-Sided Disorder

Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002).  In determining whether evidence is new and material, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

VA regulation defines "new" evidence as existing evidence not previously submitted.  "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) (2012).
 
The Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.  See id., at 117. 

Historically, a claim for pain in the joints due to undiagnosed illness was denied in a March 1995 rating decision, and the Veteran did not perfect a timely appeal.  A June 1996 rating decision found that new and material evidence had not been received to reopen the claim, and he did not perfect a timely appeal.  In light of the issuance of All Station Fast Letter 96-73, pertaining to claims filed by Veterans of the Gulf War, the RO readjudicated on the merits the Veteran's claims to establish service connection for body pain and joint pain, denying them in a January 1997 rating decision.  The Veteran filed a notice of disagreement with that decision over two years later, in November 1999, which was deemed untimely.  He was notified in December 1999 that his notice of disagreement was untimely and that he needed new and material evidence if he wished to reopen the claim.

In February 2005, the Veteran filed a claim to reopen.  The Veteran's most recent prior final denial for left sided body pain as due to undiagnosed illness, degenerative disc/joint disease of the cervical spine was a June 2005 rating decision.  The Veteran was advised of the June 2005 rating decision and of his appellate rights in a July 12, 2005 letter.  The Veteran did not file any document that could be construed to express disagreement with the June 2005 rating decision within one year from issuance of the notice of that decision.  Thus, the Board finds that the June 2005 rating decision became final, absent receipt of new and material evidence during the appellate period.

Although a timely appeal is not filed, if new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a Statement of the Case (SOC)) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).

Thus, if new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim."  Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).  Consequently, "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim."  Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

Here, the record shows that no new and material evidence was received within one year of the July 12, 2005 notification letter.  The next document chronologically in the file is a written statement from the Veteran, received in October 2005, which indicated that he had not received a recent VA disability check.  After that document, the next submission from the Veteran was received in August 2008.  Thus, the June 2005 rating decision became final as to the issue of entitlement to service connection for left-sided pain.

In April 2009, the Veteran sought to reopen his claim of entitlement to service connection for a pinched nerve in the neck.  This appeal arises from the RO's September 2009 rating decision that found no new and material evidence had been submitted to reopen the Veteran's claim.  Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial).

Evidence submitted after the RO's June 2005 rating decision includes VA outpatient treatment records, private treatment records from Tulane Hospital documenting surgical treatment for herniated nucleus pulposus C4-7, copies of pages from a publication concerning veterans' benefits, and written statements and testimony by the Veteran.  VA treatment records showed that the Veteran continued to report pain and numbness in his left side and continued to be treated for degenerative disease of the cervical spine.  

None of the new evidence added to the record since the RO's June 2005 rating decision, either by itself or when considered with the previous evidence of record, provides medical evidence reflecting that the Veteran has a current left-sided pain disorder that was incurred in or aggravated during his active service, to include due to undiagnosed illness, or that arthritis was incurred within a year after his separation from service.  A March 15, 2005, VA treatment record, which was of record at the time of the prior final denial, attributes the Veteran's complaints of weakness and pain in the left arm and shoulder to his diagnosed degenerative disc/joint disease of the cervical spine.

Moreover, the additional new evidence is also considered cumulative and redundant, as evidence of a current diagnosis of a cervical spine disorder was already in the file at the time the last prior rating decision issued in June 2005.  Statements from the Veteran as well as his representative reflected continued assertions that the Veteran has a current left-sided pain disorder that is related to service.  The Board notes that these assertions are, essentially, cumulative of such other assertions as were previously of record at the time the last prior RO rating decision issued in June 2005.

Consequently, the Board concludes that the additional evidence does not constitute new and material evidence sufficient to reopen the claim for entitlement to service connection for a left-sided pain disorder, to include a pinched nerve in the neck, including as due to undiagnosed illness.  No medical professional has provided any opinion showing that the Veteran's complaint of left-sided pain is indicative of chronic disabilities related to service, to include being due to undiagnosed illnesses.  In reaching this determination, the Board is cognizant of the recent holding in Shade v. Shinseki, 24 Vet. App. 110 (2010).  In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a claimant's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a claimant's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  Id.  See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

Here, the Veteran's statements regarding his symptoms are cumulative of contentions of record at the time of the June 2005 denial.  Thus, although such statements are material because they address the issue of a whether he has a chronic left-sided disability related to service, they are not new because they reiterate the Veteran's previous contentions.  Beginning with records associated with the claims folders in 1996, he has continuously asserted left-sided pain since leaving Saudi Arabia; such complaints are reflected in his VA treatment records.  Despite his repeated complaints, the competent medical evidence of record fails to show that he has any chronic disabilities manifested by left-sided pain for which service connection can be granted.  Accordingly, and based on this evidentiary posture, the Board must deny the Veteran's applications to reopen this previously denied issue. 


ORDER

New and material evidence has not been received to reopen a claim of entitlement to service connection for a disorder manifested by left-sided body pain, to include a pinched nerve in the neck and to include as due to an undiagnosed illness.


REMAND

With respect to the claim for service connection for a psychiatric disorder, to include PTSD, VA has a duty to seek potentially relevant outstanding VA treatment records mentioned by the Veteran during the hearing before the undersigned.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012).  Specifically, the Veteran testified that he had received psychiatric treatment in August 2011.  See Transcript at 13.  While the Board held the record open for 60 days so the Veteran could obtain the records, he did not do so.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992).  VA has a duty to seek those records.  38 C.F.R. § 3.159(c) (2012).  Additionally, if no records are available, the AOJ should document the claims file as to that fact.

Accordingly, the case is REMANDED for the following action:

1. Obtain the Veteran's VA outpatient treatment records for the period since May 2010. If such records do not exist or are otherwise not available after reasonable efforts, such circumstances shall be fully documented in the claims file. 

2. Then, readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD.  If the benefit sought is not granted in full, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond.

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).





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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).




______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs