Citation Nr: 1334627 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-18 372 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Whether new and material evidence has been received to reopen the claim of service connection for hepatitis C. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 rating decision issued by the RO. In that rating decision, the RO declined to reopen the previously denied claim of service connection for hepatitis C. In August 2011, the Board remanded the claim for additional development. As that development has been completed, the case has been returned to the Board for the purpose of appellate review. The Board is aware that it has previously denied the claim of service connection for hepatitis C on the merits in an August 2009 decision. Regardless of the actions of the RO, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b). Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. In an August 2009 decision, the Board denied the Veteran's claim of service connection for hepatitis C; he did not appeal this decision. 2. The material added to the claims files subsequent to the August 2009 decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim or that is more than cumulative or redundant of that previously considered. CONCLUSION OF LAW 1. The unappealed August 2009 decision of the Board that denied service connection for hepatitis C is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). 2. The evidence received subsequent to the August 2009 decision is not new and material for the purpose of reopening the claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) held that the law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. In this case, in a letter issued prior to the decision on appeal, the Veteran was provided notice regarding what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, and VA treatment records. The Veteran has not identified any outstanding records that are pertinent to the claims being decided herein. The Board remanded the claim in August 2011 for additional development. Specifically, the Board instructed the RO to furnish the Veteran additional notice which included the definition of new and material evidence in accordance with 38 C.F.R. § 3.156. Such notice was provided in August 2011. Thus, the Board finds that there was substantial compliance with the August 2011 remand directives. Accordingly, no further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008). Based on the foregoing, the Board concludes that there has been compliance with the duty to notify and assist provisions. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations- New and Material Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). 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 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 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis In this case, the Board previously denied the Veteran's claim of service connection for hepatitis C in an August 2009 decision. In particular, the Board found that the evidence did not show that the Veteran's hepatitis C was incurred in or aggravated by his active military service. The evidence of record at the time of the August 2009 denial included the Veteran's service treatment records, the VA medical records, and a March 2009 VA examination (in which the examiner ultimately concluded that it was less likely than not that air gun inoculations were the cause of the Veteran's current hepatitis C), as well as the Veteran's own statements (claiming that air gun inoculations were the cause of his hepatitis C). The Veteran was informed of this decision and apprised of his appellate rights, but he did not file a timely appeal. Therefore, the August 2009 decision of the Board became final. 38 C.F.R. § 20.1100. In September 2009, the Veteran requested that his claim be reopened. The evidence received since the August 2009 decision of the Board includes various lay statements submitted by the Veteran suggesting other possible causes of his hepatitis C. In lay statements, the Veteran reiterates his assertions that air gun inoculations during service were the cause of his hepatitis C. However, the Board finds that the statements are basically cumulative in nature and essentially repetitive of the Veteran's vague and factually unsupported lay assertions that the air gun inoculations or other possible exposures such as being shaved during service or involving unidentified chemicals and Agent Orange in Korea were the cause of his hepatitis C. To the extent that these added general lay statements constitute mere speculation on the Veteran's part, they alone cannot constitute new and matter evidence as to an unestablished fact necessary to substantiate the claim. Moreover, despite being notified of what constitutes new and material evidence in August 2011, the more recent VA treatment records in this appeal do not serve to support his lay assertions that the current hepatitis C is due to an event or incident of his period of active service or had its clinical onset during that period of active duty. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim of service connection for hepatitis C. ORDER As new and material evidence has not been submitted to reopen the claim of service connection for hepatitis C, the appeal to this extent must be denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs