Citation Nr: 1340754	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  10-36 620	)	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 of service connection for spondyloishthesis with mild degenerative joint disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel
 
INTRODUCTION

The Veteran served on active duty from February 1982 to February 1985.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina.
 
The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2012.  A transcript of the hearing is in the Veteran's file. 


FINDINGS OF FACT

1.  In a decision of March 2004, the RO denied the claim of service connection for spondyloishthesis with mild degenerative joint disease on the basis that the current back condition was not caused by service; the Veteran was notified of the decision and of his appellate rights but he did not appeal. 

2.  The additional evidence since the RO's decision in March 2004 is redundant or cumulative evidence previously considered and does not relate to an unestablished fact necessary to substantiate the claim.


CONCLUSION OF LAW

The criteria to reopen the claim of service connection for spondyloishthesis with mild degenerative joint disease have not been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).





The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

In a claim to reopen, the VCAA notice requires information regarding the evidence and information necessary to reopen a claim and the evidence and information necessary to establish the underlying claim for the benefit sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided the Veteran pre-adjudication VCAA notice by letter in November 2009.  The Veteran was notified that new and material evidence was needed to reopen the claim of service connection, that is, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and that pertained to the reason the claim was previously denied.

The Veteran was notified that VA would obtain service records, VA records,  and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf.  The notice included the general provisions for the effective date of a claim and the degree of disability assignable.

As for content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (notice of the elements of a new and material evidence claim). 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained the service treatment records and VA records.

Under the duty to assist, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented.  38 C.F.R. § 3.159(c)(4)(iii).  As the claim is not reopened, a VA medical examination or medical opinion is not warranted under the duty to assist.

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Claim to Reopen 

Legal Principles

The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim.  38 U.S.C.A. § 5108.

Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

As the Veteran's current claim to reopen was received in 2009, after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies.

New evidence means existing 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).



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).  The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.  King v. Brown, 5 Vet. App. 19, 21 (1993).

In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Analysis

In a decision of March 2004, the RO denied the claim of service connection for spondyloishthesis with mild degenerative joint disease on the basis that it was not caused by service.

At that time, the evidence of record consisted of service treatment records, which show a back injury in 1984; treatment records from Fayetteville VAMC, which show that the Veteran's first documented complaint of a back disability was in 2001; and the Veteran's statements, whereby he contends that his current back disability was incurred in service.

After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran.  Thus, the March 2004 rating decision became final by operation of law on the evidence of record.  38 C.F.R. § 3.104(a).







In October 2009, the VA received the Veteran's current application to reopen the claim of service connection for spondyloishthesis with mild degenerative joint disease.  In a rating decision in February 2010, the RO denied the application to reopen on the basis that new and material evidence had not been submitted since the March 2004 rating decision.

The RO considered the Veteran's statements, service treatment records, and post-service treatment reports from VAMC Fayetteville Dated from September 2009 to February 2010.

In order that the evidence submitted after the last, final denial may be considered new and material, the evidence must relate to the basis for the prior denial of the claim.  The claim was previously denied because the evidence of record failed to show that the current back condition was caused by service.

The additional evidence presented since March 2004 includes treatment records from VAMC Fayetteville dated from September 2009 to February 2010, which document treatment of the current back disability, and the Veteran's testimony before the Board, whereby he described back pain since 1984.

The additional evidence is redundant or cumulative of the evidence that the RO considered in March 2004.  Specifically, the evidence reiterates that the Veteran has a current back disability and repeats the Veteran's assertion of back pain since service.

This additional evidence does not relate to an unestablished fact necessary to substantiate the claim, namely, evidence that the current back disability is related to service, and as the lack of such evidence was the basis for the previous denial of the claim, this evidence is neither new nor material under 38 C.F.R. § 3.156.





For these reasons, the claim of service connection for spondyloishthesis with mild degenerative joint disease is not reopened.


ORDER

As new and material evidence has not been presented, the claim of service connection for spondyloishthesis with mild degenerative joint disease is not reopened and the appeal is denied.



____________________________________________
George E. Guido Jr.
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs