Citation Nr: 1330563 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-08 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for histiocytoma of the left forearm. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from July 1955 to July 1959, July 1982 to April 1992, and April 1992 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA) in Nashville, Tennessee. In March 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. . FINDINGS OF FACT 1. The RO denied service connection for histiocytoma of the left forearm in a July 2006 rating decision; the Veteran failed to perfect a timely substantive appeal of the denial. 2. The evidence submitted since July 2006 is cumulative, does not relate to an unestablished fact, and fails to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening service connection for histiocytoma of the left forearm have not been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.1101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An April 2009 notice letter was provided to the Veteran prior to the initial adjudication of his claim. This letter satisfied VA's notice requirements by apprising the Veteran of the criteria for establishing service connection, as well as the regulations pertinent to the establishment of an effective date and of a disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter advised the Veteran that his claim had been previously denied and the reason for the prior denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). While the reason for the denial was inartfully articulated by the RO, the basis for the denial was more fully explained by the May 2009 rating decision, after which the Veteran's claim was readjudicated by a statement of the case in March 2011. Moreover, the Veteran's Board hearing testimony indicates his actual knowledge of the reason for the previous denial, namely that the evidence did not reflect that the Veteran's histiocytosis had manifested during service. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's VA and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). The Veteran was not provided with a VA examination and medical opinion in conjunction with his claim to reopen, as VA's duty to provide such an examination is not triggered absent the submission of new and material evidence, which has not been presented. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Claim to Reopen The RO last denied the Veteran's service connection claim for histiocytosis of the left forearm in a July 2006 rating decision. As the Veteran did not perfect a timely substantive appeal of this denial, the denial of the claim is now final. A previously denied claim may be reopened by the submission of new and material evidence. 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). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App 273 (1996). Evidence is new if it has not been previously submitted to agency decision-makers and 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. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). At the time of the issuance of the July 2006 rating decision, the pertinent evidence of record included the Veteran's statements, a VA medical opinion, a private medical opinion, service treatment records, VA treatment records, and private treatment records. The Veteran's service treatment records failed to reflect any abnormalities of the Veteran's left forearm, or any reference to a left forearm disorder. While a September 1994 service treatment record includes notations that the Veteran was experiencing some left arm symptoms, when reading the entirety of that document, and considering it in context of other contemporaneous treatment records, it is evident that the reference to the left arm was erroneous, as the Veteran had reported and was being treated for right arm symptoms. In his submitted statements, the Veteran alternately reported that he was diagnosed with histiocytoma in January 1996, within one year of leaving service in May 1995; or that he first detected a lump on his left forearm in October 1996, more than one year after he was discharged from service in May 1995, and that he underwent surgery to excise the lump in February 1997. The Veteran's VA and private treatment records document his report of first noting the nodule on his forearm in October 1996 and that in February 1997, the Veteran underwent the surgical excision of the nodule of his left forearm, which was diagnosed as a form of sarcoma in March 1997. Subsequent records reflected the Veteran's ongoing treatment for the residuals of this surgery, which included left ulnar neuritis. In a statement authored in May 2006, a private oncologist stated that as the Veteran was first diagnosed with soft tissue sarcoma (histiocytoma) in February 1996, and as he had been discharged from service less in May 1995, less than one year prior to the time of diagnosis, the Veteran's sarcoma existed in its early stages while he was in service, as these forms of cancer are typically in place for a year or more when first detected. In a statement authored in June 2006, a VA physician stated that as the Veteran's histiocytoma was first detected during the holiday season in 1995, approximately six months after he was discharged from service in May 1995, it is plausible, even reasonable, that the Veteran's histiocytoma existed during service. The RO determined that these medical opinions were based on inaccurate histories provided to the physicians by the Veteran, as the Veteran's contemporaneous treatment records documented that his sarcoma was first detected and treated more than one year after his discharge service. Thus, the RO concluded that the evidence failed to reflect that his sarcoma first manifested during service. Since the RO's denial of the service connection claim in July 2006, the pertinent evidence added to the record includes duplicates of the 2005 and 2006 medical opinions previously considered by the RO; treatment records reflecting on-going treatment for the residuals of his sarcoma excision; and the Veteran's statements and hearing testimony in which he continues to assert that he first detected his left arm nodule in 1995 and underwent related surgery in 1996. The Veteran's assertion that his left arm nodule was first detected in 1995 and the 2005 and 2006 medical opinions were expressly previously considered by the RO. Thus, this evidence is not new. While the VA treatment records reflecting the Veteran's ongoing treatment for the residuals of his left elbow surgery are new, the records are not material, as they do not suggest that the Veteran's histiocytoma of the left arm initially manifested in, or is otherwise related to, service. New and material evidence having not been presented, the preponderance of the evidence is against the claim to reopen; there is no doubt to be resolved; and reopening the claim is not warranted. ORDER New and material evidence has not been presented to reopen a service connection claim for histiocytoma of the left forearm; reopening is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs