Citation Nr: 1318433 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-25 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for an intracranial injury. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1943 to June 1944. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the 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). FINDINGS OF FACT 1. The RO denied the Veteran's claim of entitlement to service connection for an intracranial injury in a June 1944 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 2. Evidence obtained since the time of the June 1944 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for the Veteran's intracranial injury. CONCLUSION OF LAW The June 1944 rating decision which denied entitlement to service connection for the Veteran's intracranial injury is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran initially filed his claim for service connection for intracranial injury in June 1944, the month he separated from active military service. This claim was denied by a June 1944 rating decision in which the RO found the weight of the evidence established his condition pre-existed his military service and was not aggravated during his service. The Veteran did not file any new evidence or file a notice of disagreement within one year, and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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 preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented to reopen this claim. At the time of the June 1944 rating decision, the evidence of record included the Veteran's service treatment records. These records include a May 1944 Report of Medical Survey which found the Veteran had an intracranial injury, but found this injury pre-dated the Veteran's military service. The report explains the Veteran boxed before entering his military service and received many blows to the head. The report stated the Veteran experienced constant throbbing frontal and occipital headaches during the year before he entered into active military duty in the Navy. Based on this report the RO found that the Veteran had an intracranial injury, but the condition pre-dated his military service and was not aggravated by his military service. In November 2009 the Veteran sought to reopen his previously denied claim for service connection for an intracranial injury. The Veteran asserted his head injuries were caused by blows to the head he received during active military service as a member of the U.S. Navy boxing team. During the course of the appeal new evidence submitted included VA treatment records from November 2000 to November 2009, the report from a VA examination in August 2009, and several written statements submitted by the Veteran. Although this evidence was not previously submitted to the VA before the RO's June 1944 decision and is therefore "new," as will be discussed below the Board finds this evidence is not "material." The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court explained this standard is intended to be a low threshold. Id. Here, the new treatment records contain some evidence the Veteran experienced residuals from a head injury, including notation of slight shuffling gait and notation of some urinary control issues. In addition these records reflect the Veteran experienced additional head trauma in a May 1998 accident, more than fifty years after separation from military service, but noted the Veteran was doing well in November 2000. This above-referenced new medical evidence only addresses the current status of the Veteran's intracranial injury, which has never been in dispute, to the extent the issue is addressed at all. The Veteran's claim for service connection for an intracranial injury was not previously denied for failure to establish he currently had a disability. Rather, his claim was denied for failure to establish his current intracranial injury began during, or was otherwise caused or aggravated by, his military service. The new treatment records submitted only addresses the current status of the Veteran's condition (which is not at issue). Therefore the Board finds this evidence is not material. The Veteran has also submitted several written statements in which he related his intracranial injury to his military service. For example, in November 2009 the Veteran asserted he began having headaches following a spinal tap in 1944. However, these lay assertions by the Veteran are not new evidence. Instead, the Veteran made similar, if not identical, statements in his previous claim for service connection for this disability. As such, lay statements by the Veteran that attribute his intracranial injury to his military service have already been considered by the RO in the previous determination. Therefore this lay evidence submitted by the Veteran is not "new". He is simply re-stating his prior claim made many years ago. Finally, it is important for the Veteran to understand that even if new and material evidence was presented and the claim was reopened, the weight of the evidence is against the Veteran's claim for service connection. For example, the new evidence of a VA examination in August 2009 only provides further evidence against the Veteran's claim: This examiner reviewed the Veteran's claims file and opined his intracranial injury occurred prior to enlistment in the military and was not aggravated by his military service. Therefore, the Board finds this new evidence does not provide material evidence in support of the Veteran's claim, but rather provides additional probative evidence against his claim. In any event, based on all of the foregoing, the Board finds the Veteran has not submitted any new evidence which relates to the unestablised fact that his intracranial injury pre-existed his military service and was not aggravated during service. As such, the evidence submitted since June 1944 is not material and does not reasonable result in substantiation of the claim under Shade (simply stated, evidence against the claim does not provide evidence that will provide a basis to reopen the claim). The Veteran's claim for service connection for intracranial injury is therefore not reopened. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Additionally, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In the present case, the Board notes the initial VCAA letter provided to the Veteran in June 2009 failed to include the required Kent notice. However, the Veteran was provided with an additional letter in November 2009, before the claim was adjudicated, which provided all the required notice, including all elements required by Pelegrini II, Dingess/Hartman, and Kent. The Veteran was provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records have been obtained, and the Veteran has not asserted he received any private treatment. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. In any event, in this new and material case, an examination should not have been undertaken (unless new and material evidence is submitted, an examination should not have been undertaken by the RO). As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER New and material evidence has not been presented to reopen a claim for entitlement to service connection for an intracranial injury, the claim is not reopened, and the appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs