Citation Nr: 1324573 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-17 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability for substitution or accrued benefits purposes. ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This is a certified substitution case. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Muskogee, Oklahoma that denied the Veteran's application to reopen his claim for service connection for a back disability. Unfortunately, the Veteran passed away in August 2012 while the claim was in remand status. The Veteran's spouse, the appellant in this case, then filed a claim seeking to be substituted for her husband for the purpose of processing his claim to completion. In September 2012, the RO issued a letter indicating that the appellant was eligible for substitution, and granted her motion. In the April 2013 Supplemental Statement of the Case (SSOC), the RO indicated that the Board had reopened the Veteran's service connection claim for a low back disability in its August 2011 decision. The RO reopened the claim and denied it on the merits. The Board did not reopen the claim in its August 2011 decision, but the issue was remanded for further development. Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92; Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. A June 1997 rating decision most recently denied entitlement to service connection for a back disability because the Veteran's back disability was congenital and was not etiologically related to active service. 2. Evidence received since the June 1997 decision is cumulative and redundant and does not raise a reasonable possibility of substantiating the low back claim. CONCLUSIONS OF LAW 1. The June 1997 decision that most recently declined to reopen the service connection claim for a back disability is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the June 1997 rating decision is not new and material, and, therefore, the claim may not be reopened for substitution or accrued benefits purposes. 38 U.S.C.A. §§ 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the appellant's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in August 2006 and March 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. At the time of the notices, the Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For purposes of evaluating the Veteran's request to reopen his claim of entitlement to service connection, the Board observes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that with regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then release a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. Id. The March 2008 letter informed the Veteran that his claim had been previously denied, and that new and material evidence was needed to substantiate the claim to reopen and described what would constitute such new and material evidence. The letter also specifically explained the basis of the prior denial on the merits, and directed the Veteran to submit any new and material evidence showing that arthritis of the hands or shoulders was related to service. This letter was fully compliant with the requirements set forth in Kent v. Nicholson. Id. Regarding the claim for substitution, it is generally assumed that all 38 C.F.R. part 3 regulations that would have been applicable to the Veteran had he not died would be applicable to the substitute under the proposed regulations. As such, VA would only be obligated to send a substitute notice under 38 CFR 3.159(b) if the required notice was not sent to the deceased claimant or if the notice sent to the deceased claimant was inadequate. As described above, VA's duty to notify the Veteran was satisfied prior to his death, and therefore no additional notification is due the appellant. She was issued additional correspondence in September 2012 that included discussion of the relationship of accrued benefits to substitution, the manner of substitution request and claim processing, and benefits to which substitution applies. Moreover, she was provided notice with respect to assignment of disability ratings and effective dates in a June 2013 letter. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of his appeal, the Veteran clearly had actual knowledge of the evidence he was required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understood what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Prior to his death, the Veteran submitted numerous statements and arguments in support of his claim. He was previously represented by a state veterans organization. The Board finds that the Veteran had actual knowledge as to the information and evidence necessary for him to prevail on his claims. Further the appellant has not argued that she was not provided adequate notice of her claims, and she is not otherwise prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the appellant. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. All records identified by the Veteran as relating to this claim have been obtained, to the extent possible. Private medical records identified by the Veteran have been obtained, to the extent possible. Attempts were made to obtain records from Bad Kissingen Army Base in Germany (and associated hospitals/field clinics), and in May 2010, the National Personnel Records Center (NPRC) provided a negative response. The RO also requested that the Veteran submit copies he may have of any of these records, but he did not have any copies to submit. Additionally, the appellant did not submit any copies of these records. The Board finds that all attempts to obtain these Bad Kissingen records have been exhausted, and that any further attempts to retrieve these records would be futile. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). As to the appellant's request to reopen the Veteran's claim for entitlement to service connection for a back disability, the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. In reaching that conclusion, the Board notes that until a claim is reopened VA does not have a duty to obtain a medical opinion. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (2012). Given the attempts to obtain the outstanding VA treatment records related to the Veteran's back disability, requests made to the Veteran to provide any outstanding treatment records from that timeframe, the formal finding that complete records from his back surgery are unavailable, association of the Veteran's SSA records with the claims files, and the issuance of an April 2013 SSOC, the Board finds that there has been substantial compliance with its August 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The 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. 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 recently 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). Factual Background and Analysis The appellant seeks to reopen the Veteran's previously denied claim of service connection for a back disability. The RO originally denied service connection for a back disability in a May 1979 rating decision. The Veteran did not appeal the denial and it became final. The Veteran subsequently filed a request to reopen his service connection claim for his back disability in March 1997. The RO declined to reopen the claim in June 1997 as no new and material evidence had been received to reopen this claim. Again, the Veteran did not appeal the denial and it became final. The basis for the May 1979 denial was that the Veteran was shown to have a constitutional/developmental abnormality. It was identified as idiopathic scoliosis with left lumbosacral strain and left glutei tendinitis. As such, a back disability was neither caused, nor aggravated by his active duty. The RO's basis for not reopening the Veteran's claim in June 1997 was that there was no newly received evidence showing that the Veteran had a back disability that was caused or aggravated by his military duty. The Veteran filed his most recent claim to reopen for his back disability in May 2006. Evidence of record at the time of the June 1997 rating decision was as follows: (1) service treatment records showing no treatment for any back problems during service, a negative musculoskeletal examination at discharge and, the Veteran's own report of medical history dated in July 1968 denying any recurrent back pain; (2) an April 1979 VA examination report showing a diagnosis of idiopathic scoliosis with left lumbosacral strain and left glutei tendinitis; (3) private treatment records dated in the 1990s showing treatment for back complaints and muscle strains; and (4) VA treatment records showing diagnoses including post-traumatic osteoarthritis of the lumbar spine with lumbosacral back strain. The evidence of record received since the June 1997 rating decision includes: (1) the Veteran's own statements of contending that he was injured while stationed in Germany and was put on light duty for two months; (2) SSA records showing a history of low back complaints; (3) VA treatment records showing low back complaints as well as radiculopathy, lumbar disc protrusion at L5-S1, questionable narrowing or right neural foramina at L5-S1, degenerative disc disease of the lumbar spine, and rheumatoid arthritis; (4) a March 2010 statement from the Veteran's coworker of over 31 years who indicated that the Veteran had complaints of back pain for many years; (5) the Veteran's service personnel records showing no complaints of or treatment for any back disability or placement on a duty profile. The evidence of record received since June 1997 does not show that the Veteran has any back disability that was caused or aggravated by his military service. For evidence to be new and material in this matter, it would have to tend to show that the Veteran's back disability was incurred in service, or is otherwise related to his military service. On review of the evidence above, the Board finds that the evidence received since June 1997, with respect to his claimed back disability, is not material to the claim. Nothing in the added to the record relates to the reason the claim was originally denied; i.e., nothing therein shows or implies that the Veteran has a back disability that is attributable to event, injury, or disease during service. The evidence relates exclusively to recent symptoms and does not show or imply any relationship between those symptoms and active service. The Board has also considered the Veteran's lay statements that his back disability is related to his military service, but these statements were merely cumulative of his statements of record at the time of the June 1997 decision and the denial before that. Additionally, the Board has considered the March 2010 statement from the Veteran's co-worker indicating that the Veteran has complained of back pain for 31 years. This would put the onset of the Veteran's back problems in the late-1970s/early-1980s, and the statement does not show that the Veteran's complaints are in any way related to his military service. The Board has considered the back disability claim in light of Shade, 24 Vet App 110. Although Shade asserts that a case must be reopened if any previously-unproven element of service connection is addressed, in this case the evidence received since June 1997 does not pertain to any element of service connection that was previously missing. Accordingly, the circumstance cited by Shade is not applicable for the back disability claim. Although the additional treatment records and lay statements constitute new evidence, they are not material in that they do not show a possibility of substantiating the appellant's claim. Accordingly, the additional evidence received since June 1997 is not new and material and the claim may not be reopened for substitution or accrued benefits purposes. Until the appellant meets his threshold burden of submitting new and material evidence sufficient to reopen her claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER As new and material evidence has not been received, reopening of the claim for service connection for a back disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs