Citation Nr: 1325171 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 11-25 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for an intervertebral disc disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant served on active duty from February 1949 to March 1953 and from September 1961 to September 1962. Additionally, he has unverified active duty service with the Merchant Marines during World War II and unverified active duty for training (ACDUTRA) with the Army reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the previously denied claim for service connection for an intervertebral disc disorder. 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. Most recently, service connection continued to be denied for an intervertebral disc disorder by rating decision of April 2007. The appellant did not timely appeal the decision within one year of notice of the denial. 2. Evidence received subsequent to the April 2007 rating decision does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating the underlying claim of service connection for an intervertebral disc disorder. CONCLUSIONS OF LAW 1. The April 2007 rating decision which denied reopening the claim for service connection for an intervertebral disc disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2012). 2. Evidence submitted subsequent to the April 2007 rating decision denying the reopening of service connection for an intervertebral disc disorder is not new and material and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify As provided for by 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) 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. 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. Kent v. Nicholson, 20 Vet. App. 1 (2006). 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. In this case, the notice letter provided to the appellant in November 2009 was compliant with Kent. The letter indicated the general criteria for reopening a previously denied claim, and information concerning why the claim was previously denied. Although the most recent denial was by rating decision of April 2007 and not November 1974as indicated in the notice letter, the appellant was told that the claim for an intervertebral disc disorder was denied because the evidence showed that condition existed prior to service and was not aggravated by service. Next, VA has a duty to assist an appellant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In addition to the already previously associated records with the claims folder, the RO associated medical statements from the appellant's physicians, a statement from his spouse, and statements from the appellant. No other evidence was identified in connection with this claim. As to his petition to reopen the claim on appeal, VA need not conduct an examination with respect to the claim of whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection 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.) The appellant was also offered the opportunity to testify before the Board in this case. He indicated that he wanted a hearing in this regard and later withdrew his hearing request. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. 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 Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 appellant's claim to reopen the claim for service connection for an intervertebral disc disorder was most recently denied in an April 2007 rating decision, with notice sent to the appellant that same month. The record consisted of previously considered service treatment records, medical statements, and statements from the appellant. However, the appellant did not submit any new evidence in connection with that claim since the last final denial. Therefore, there was no evidence that was of record which could reasonably substantiate the claim. The appellant did not appeal the April 2007 denial, within the applicable one year period. Moreover, a review of the record fails to show receipt of evidence between April 2007 and April 2008 that would be considered "new and material". Buie v. Shinseki, 24 Vet. App. 242-52 (2010) (held that, if new and material evidence has been submitted within a year of the RO decision, 38 C.F.R. 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim). The April 2007 rating decision therefore is final. The appellant filed a request to reopen the claim for service connection for an intervertebral disc disorder in November 2009. A March 2010 rating decision continued to deny the claim. In this rating decision, the RO found that no new and material evidence had been submitted to reopen the claim. The evidence received since the April 2007 most recent final decision includes private medical statements from R.R.S., DO, dated in May 2004; A.T.G., DO, dated in August 2005; S.K., MD, dated in July 2006; B.J.B., MD, dated in December 2009; and T.J.A., DC, dated in January 2012. Additionally, an October 2012 statement from the appellant's spouse was also received in connection with the claim. The medical statements from the aforementioned physicians are not new and material. The statement from Dr. R.R.S. is not new and material because this letter indicates that the appellant is not able to handle his daily affairs, and it does not apply to an unestablished fact which was injury to his back, claimed in 1958. The medical statement from Dr. A.T.G. is new, as it has never been presented before. However, the statement is not material, because it does not relate to an unestablished fact necessary to substantiate the claim. This specific statement indicates, in pertinent part, that the findings she reviewed, show a spinal injury that occurred at least 5 to 20 years prior to the appellant's evaluation by her. She indicated that this made it more likely than not related to an injury occurring during active service in 1950. If the findings occurred 5 to 20 years prior to the appellant's visit to her, it would make his injuries consistent with an injury occurring in the 1980's, many years after the appellant's claimed injury in 1958. Therefore, this medical statement is not new and material to reopen the claim. The July 2006 medical statement from Dr. S.K. is also not new and material. This medical statement lists multiple conditions that the physician indicates makes the appellant totally disabled, none of which are related to his back. This evidence, which does not relate to any back disorder, does not raise a reasonable possibility of substantiating the appellant's claim. The December 2009 medical statement from Dr. B.J.B. indicates that it is his opinion that the appellant's back disorder is related to a 1950 injury in service while on active duty. This evidence, that has not previously presented before is new. However, it is not material as it does not relate to an unestablished fact, which according to the most recent denial, was an inservice injury occurring in 1958, not 1950, while on active duty for training (ACDUTRA). This evidence does not raise a reasonable possibility of substantiating the claim. Therefore, this medical statement is not new and material. Further, the medical statement from Dr. T.J.A. is not new and material evidence. This statement is not new, as it is basically redundant and cumulative of previous medical statements written by this physician before. It is not material, as it does not relate to an unestablished fact necessary to substantiate the claim. The physician has previously submitted a statement related to a claimed injury by the appellant in 1950. This time, he relates the disorder in a March 1974 examination performed after the appellant sustained an injury while trying to lift a 32 gallon can full of water. This statement does not relate to an unestablished fact, as the appellant was not on active duty or ACDUTRA in 1974. Therefore this statement does not raise a reasonable possibility of substantiating the claim. This evidence is not new and material. Finally, the appellant's spouse submitted a statement on behalf of his claim. This statement is also cumulative of previous statements she has provided in the past. The Board emphasizes that testimony simply reemphasizing the position previously considered in the prior final rating decision is not new or sufficient to reopen the claim. Reid v. Derwinski, 2 Vet. App. 312 (1992); see also Anglin v. West, 11 Vet. App. 361, 368 (1998). As the evidence received since the last final denial in April 2007 is not new and material, the application to reopen the claim must fail. As the preponderance of the evidence is against the claim for service connection for an intervertebral disc disorder, the benefit of the doubt rule is not applicable. ORDER New and material evidence has not been received to reopen the claim for service connection for an intervertebral disc disorder. The appeal is denied. ___________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs