Citation Nr: 1338047 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-32 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right sacroiliac disability. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1943 to August 1943. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which declined to reopen the Veteran's claim of entitlement to service connection for a right sacroiliac disability. On his November 2012 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested a hearing before a Veterans Law Judge. However, in an April 2013 correspondence, the Veteran indicated that he could not attend a travel board or videoconference hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2013). 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. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. 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. In an October 2005 rating decision, the RO declined to reopen the Veteran's claim for service connection a right sacroiliac disability; the Veteran did not appeal this determination within one year of being notified. 2. Evidence received since the October 2005 rating decision when viewed in conjunction with all the evidence of record does not raise a reasonable possibility of substantiating the claim of service connection for a right sacroiliac disability and need not be considered in order to fairly decide the claim. CONCLUSIONS OF LAW 1. The October 2005 RO decision that declined to reopen the claim for service connection for a right sacroiliac disability is final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. New and material evidence has not been received sufficient to reopen the claim of service connection for a right sacroiliac disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in June 2010, prior to the September 2010 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen, the Veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the June 2010 notice letter included the criteria for reopening the previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the Veteran was informed about what evidence is necessary to substantiate the elements required to establish service connection for his claim that were found insufficient in the previous denials. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. The VCAA appears to have left intact the requirement that a veteran must first present new and material evidence in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108 before the Board may determine whether the duty to assist is fulfilled and proceeding to evaluate the merits of that claim. It is specifically noted that nothing in the VCAA shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in the provisions of 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A(f) (West 2002). As set forth below, the Veteran has not submitted new and material evidence to reopen the claim for service connection for a right sacroiliac disability. Accordingly, VA has no further duty to assist him in the development of his claim. Additionally, as noted above, the Veteran withdrew his request to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Analysis By way of background, the Board notes that service connection for a right sacroiliac disability (characterized as chronic right sacroiliac arthritis) was granted in a February 1944 rating decision. The RO found that the disability was incurred in service in World War II. However, in an August 1959 rating decision, the RO proposed to sever service connection for the right sacroiliac disability after having determined that there was clear and unmistakable error in the February 1944 rating decision granting service connection. Based on review of the service treatment records, the RO indicated that the Veteran's right sacroiliac disability pre-existed service and had not been aggravated by service. Subsequently, in a 1960 rating decision, the RO severed service connection for the right sacroiliac disability. The Veteran did not file a timely appeal. In a May 2005 decision and October 2005 rating decision, the RO declined to reopen the claim for service connection for a right sacroiliac disability. The Veteran did not file a timely appeal. Accordingly, the Board finds that the October 2005 rating decision is final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). The claim of entitlement to service connection for a right sacroiliac disability may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (a) (2013); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in June 2010. 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) (2013). In this regard, in the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The evidence before VA at the time of the most recent prior final decision consisted of the Veteran's service treatment records and post-service medical records. Significantly, the Veteran's service treatment records showed that the Veteran had a pre-existing sacroiliac disability which was not aggravated in service. The post-service medical records showed diagnoses of chronic right sacroiliac arthritis. The evidence also included the Veteran's statements as to service incurrence (i.e. he was hit and pinned by a Jeep, and was subsequently in traction). The Veteran also denied any pre-existing problems. The Board finds that the evidence received since the last final decision is cumulative of the evidence of record at the time of that decision and does not raise a reasonable possibility of substantiating the claim. The evidence consists of post-service medical records which show evidence of a current right sacroiliac disability and the Veteran's report of injury during service. Additionally, the Veteran has submitted statements as to service incurrence which are duplicative of statements he has previously submitted. Notably absent is any evidence even indicating must less showing that the Veteran's pre-existing disability was aggravated in service. Without such evidence, the claim for service connection for a right sacroiliac disability cannot be reopened. See 38 C.F.R. § 3.156(a) (2013). ORDER New and material evidence not having been received, the application to reopen a claim for service connection for right sacroiliac disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs