Citation Nr: 1752923	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  12-28 638	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim for service connection for aggravation of a left arm birth defect.


REPRESENTATION

Veteran represented by: Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Snoparsky, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from March 1953 to December 1955.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 administrative denial of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

The Veteran was scheduled for a videoconference hearing, but was unable to appear due to his health.  The Veteran's spouse stated the claim should continue.

The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Evidence received since the March 2012 administrative denial is new but does not relate to any unsubstantiated fact in the previously denied claim; and does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for aggravation of a left arm birth defect.


CONCLUSION OF LAW

New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for aggravation of a left arm birth defect.  38 U.S.C.A. § 5108, (West 2014); 38 C.F.R. § 3.156 (2016).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Assist and to Notify

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist, and the Veteran has not raised any procedural arguments regarding the notice or assistance provided in this case.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Legal Criteria

Generally, a claim which has been denied in a final unappalled rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7105(c), (d)(3) (West 2014); 38 C.F.R. 
§ 20.1103 (2016).  If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. 
§ 3.156(a) (2016). 

New evidence means evidence not previously submitted to agency decision makers that is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial.  38 C.F.R. § 3.156(a) (2016).  Materiality has two components: first, that the new evidence pertains to the reason for the prior final denial; and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.  The threshold for determining whether new and material evidence has been submitted is low.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).


III.  Merits of the Case

In July 2002, the Houston RO denied entitlement to service connection for aggravation of a left arm birth defect because there was no objective evidence of worsening of a pre-existing condition due to the Veteran's service.  The Veteran did not appeal and the decision became final in July 2003.  38 U.S.C.A. § 7105 (West 2014).  In September 2011, the Veteran filed a claim to reopen his service connection claim for aggravation of a left arm birth defect.  In March 2012, the RO denied reopening of this claim because no new and material evidence had been submitted. 

The evidence associated with the file prior to March 2012 included: statements by the Veteran about his left arm birth defect and how it was aggravated by his time in service.

Since the final disallowance of the claim for aggravation of a left arm birth defect, evidence that has become associated with the file includes: VA treatment records, a statement from the Veteran's spouse, and more statements from the Veteran.

The statements by the Veteran and his spouse submitted since the previous final denial reiterate the Veteran's previous contentions about how he aggravated his left arm defect in service and are therefore not new evidence.  The VA treatment records are new evidence as they were n
ot of record at the time of the prior denial and are not redundant or cumulative of evidence previously submitted.  However, while the VA treatment records are new, the evidence is not material because it does not relate to the unestablished fact necessary to substantiate the claim that the Veteran aggravated his left arm birth defect while in service and does not address the basis for the prior denial.  The VA treatment records address several conditions, including skin rashes, care for forgetfulness, and hypertension.  However, none of the records address the Veteran's left arm birth defect and whether it was aggravated by his time in service.  Therefore, because none of the evidence submitted from the previous final denial is both new and material, the Veteran's claim for entitlement to aggravation of a left arm birth defect must be denied.  

ORDER

New and material evidence having not been received, the application to reopen the previously denied claim of entitlement to service connection for aggravation of a left arm birth defect is denied.




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs