Citation Nr: 1323446 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-30 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a left hip disorder. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from December 1958 to February 1959. The Veteran died on March [redacted], 2011. The appellant is his surviving spouse. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Board dismissed the Veteran's appeal due to his death. The Veteran's surviving spouse has since been substituted as the appellant for the claim that had been on appeal at the time of the Veteran's death. See September 2012 Memorandum; see also 38 U.S.C.A. § 5121A. This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In a November 1972 decision, the Board denied service connection for a left hip disorder. 2. October 2001 and September 2005 Board decisions confirmed and continued the previous denial of service connection for a left hip disorder. 3. The evidence received since the Board's September 2005 decision is cumulative to evidence previously of record and does not raise a reasonable possibility of substantiating the claim of service connection for a left hip disorder. CONCLUSIONS OF LAW 1. The September 2005 Board decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. The evidence received since the September 2005 Board decision is not new and material, and the claim for service connection for a left hip disorder is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy the above requirement, the Secretary must consider the bases for the denial in the prior decision and provide the claimant with a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were previously found insufficient. Here, the Veteran was sent a letter in November 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. He was specifically notified of what constituted new and material evidence to reopen the claim and the requirements for establishing the underlying claim of entitlement to service connection. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA had a duty to assist the Veteran in the development of the claim and, subsequent to proper substitution, has the same duty to assist the appellant. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis The Board previously denied service connection for a left hip disability in a November 1972 decision. In October 2001 and September 2005 decisions, the Board denied petitions to reopen the claim of entitlement to service connection for a left hip disorder. The September 2005 Board decision is final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. All evidence submitted by or on behalf of a claimant since the most recent final denial must be reviewed to determine whether the claim should be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-3 (1992). "New" evidence means existing evidence not previously submitted to agency decision makers. See 38 C.F.R. § 3.156. "Material" evidence is newly submitted evidence that relates to an unestablished fact necessary to substantiate the claim and presents the reasonable possibility of substantiating the claim. Id. The evidence raises a reasonable possibility of substantiating the claim if it relates to an unestablished element of the claim and the claim could be substantiated were a VA examination provided. Shade v. Shinseki, 24 Vet. App. 110, 119 (2010). It contemplates the likely entitlement to an examination if the claim was reopened. Shade, at 121. The November 1972 decision found that the Veteran's left hip disability clearly and unmistakably preexisted his military service and was not aggravated therein. The subsequent denials found that new and material evidence relating to an unestablished fact necessary to substantiate the claim had not been received. At the time of the September 2005 Board decision, the evidence of record included the Veteran's service treatment records, a February 1971 VA examination, and private treatment records pertaining to post-service treatment for left hip problems. Since the September 2005 Board decision, VA has received additional post-service treatment records and lay statements of the Veteran and the appellant. The additional post-service treatment records are new in that they were not previously submitted to agency decision makers; however, these records address treatment for current left hip problems and do not address whether left hip disability had its onset or was aggravated in service. Evidence already established the presence of left hip disability, what was lacking and is still missing from the record is competent evidence tending to show that left hip disability had its onset or increased in severity in service beyond its natural progress. The Veteran's additional statements as well as those lay statements submitted by the appellant after his death have consisted of argument not evidence. They are cumulative to previous contentions made on the Veteran's behalf in earlier claims. The additional evidence is cumulative to evidence previously of record and does not present a reasonable possibility of substantiating the claim. Thus, this new evidence is not material. See 38 C.F.R. § 3.156. Accordingly, the Board concludes that the criteria for reopening the Veteran's claim of service connection for a left hip disorder have not been satisfied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence having not been received, the claim of entitlement to service connection for a left hip disorder is not reopened. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs