Citation Nr: 1312986	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  08-07 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Whether new and material evidence has been presented to reopen a claim for service connection for abnormal blood work.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Schechter, Counsel





INTRODUCTION

The Veteran served on active military duty from April 1992 to September 1992.

The appeal comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. 

The Board remanded this issue in July 2010 and again in February 2012 for additional development.  The claim now returns to the Board for further appellate action.  

The Veteran was scheduled for a Board hearing in July 2010.  He was provided proper notice of the hearing but failed to appear without explanation and has not requested that the hearing be rescheduled.  Therefore, his request for a Board is considered withdrawn.    


FINDINGS OF FACT

1.  The RO denied a claim of entitlement to service connection for abnormal blood work in an unappealed rating decision issued in April 1993.

2.  Evidence added to the record subsequent to the April 1993 denial is cumulative or redundant of the evidence previously of record or it does not relate to an unestablished fact necessary to substantiate the claim and is not sufficient to raise a reasonable possibility of substantiating the claim for service connection for abnormal blood work.





CONCLUSION OF LAW

New and material evidence has not been received to reopen the claim for service connection for abnormal blood work.  38 U.S.C.A. § 5108  (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.   

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.   Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).

The Board remanded the claim in July 2010 and again in February 2012 specifically to afford the Veteran this Kent-complying notice.  Thereafter, the Veteran was provided all required notice in a letter mailed in February 2012.  While this was provided after the initial adjudication of the claim to reopen, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim to reopen.  There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim).  

In addition, the service treatment records and all available post-service medical evidence identified by the Veteran are of record.  Neither the Veteran nor his representative has identified any existing evidence that could be obtained to substantiate the claim to reopen.  The Board is also unaware of any such evidence.

Although no VA examination was provided and no VA medical opinion was obtained in response to the claim to reopen, VA is not required to obtain a medical opinion or provide a VA examination in response to a claim to reopen if new and material evidence has not been presented.  See 38 C.F.R. § 3.159(c)(4).

In sum, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the claim to reopen.

II.  Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An 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.  Moreover, 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, 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).

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  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). 

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).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

III.  Factual Background and Analysis

An April 1993 rating decision denied the Veteran's original claim for service connection for abnormal blood work on the basis that there was "no evidence of a disability or ratable condition."  The report of a prior VA examination in December 1993 notes that the Veteran had asserted that blood work had been done revealing an "abnormality." However, the neither the Veteran nor the examination disclosed any specific disease or disability or injury associated with the Veteran's blood.  The Veteran's service treatment and examination records include no findings of a blood associated disease or disability or injury.  

Although notified of this April 1993 decision by the RO in April 1993, the Veteran did not file an appeal of the decision.

Since that denial, the Veteran has not submitted evidence tending to support the presence of a disease, injury or disability associated with the alleged abnormal blood work to support the claim.  By a submission in March 2006 the Veteran sought to reopen the claim by asserting that he had dyslipidemia due to inactivity due to his service-connected back condition.  In a May 2006 statement he asserted that he had dyslipidemia as a result of inactivity and obesity resulting from his service-connected depression and back disability.

The Veteran provided additional statements in October 2011 and March 2012 to the effect that his claim had been mischaracterized originally, and that when he first submitted a claim in 1993 he really meant it to be a claim for service connection for arthritis, based on information provided to him by a treating physician to the effect that blood abnormalities indicated the presence of arthritis associated with his low back condition.  

The Board notes that the Veteran has been granted service connection for back disability, previously classified as lumbar disc disease and currently classified as myofascial restrictive syndrome/strain.  He has not been granted or denied service connection for arthritis.  If he is seeking service connection for arthritis, he should so inform the RO, which should respond appropriately to any such claim from the Veteran.

The dyslipidemia specifically referenced by the Veteran is a laboratory finding and not a disease or injury.  None of the evidence added to the record shows that the Veteran has any disease, injury or disability manifested by abnormal blood work.  In sum, the evidence added to the record is either cumulative or redundant of the evidence previously of record, or it does not relate to an unestablished fact necessary to substantiate the claim and is not sufficient to raise a reasonable possibility of substantiating the claim.  


ORDER

The Board having determined that new and material evidence has not been presented, reopening of the claim for service connection for abnormal blood work is denied.


____________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs