Citation Nr: 0717876 Decision Date: 06/14/07 Archive Date: 06/26/07 DOCKET NO. 05-27 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a chest disability. 2. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a right elbow disability. 3. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a left shoulder disability. 4. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from May 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2007, the Board granted the veteran's motion to advance his case on the docket pursuant to the provisions of 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. In December 1947, the RO denied the veteran's service connection claim for a chest disability. 2. In December 1990, the RO denied the veteran's service connection claim for a left shoulder disability and denied his claim to reopen his service connection claims for back and right elbow disabilities. 3. In a June 2004 communication, the veteran effectively requested that his claims for service connection for a chest disability, a left shoulder disability, a right elbow disability and a back disability be reopened. 4. Evidence received since the December 1947 RO decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a chest disability. 5. Evidence received since the December 1990 RO decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a left shoulder, a right elbow and a back disability. CONCLUSIONS OF LAW 1. The December 1947 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. The December 1990 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002). 3. New and material evidence has not been received to reopen the veteran's claims of entitlement to service connection for a back, a right elbow, a left shoulder or a chest disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2006). As part of that notice, VA must inform the claimant of the information and evidence she is expected to provide, as well as the information and evidence VA will seek to obtain on her behalf. In addition, VA must advise a claimant to provide any additional evidence in her possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The 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). With regard to a petition to reopen a finally decided claim, the VCAA requires VA to provide the veteran with notice of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007); Simmons v. Nicholson, No. 06-7092 (Fed. Cir. May 16, 2007). In this case, in July 2004 and March 2006 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate service connection, new and material evidence, increased rating and earlier effective date claims, as well as specifying what information and evidence must be submitted by him, what information and evidence will be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertains to his claims. The Board initially notes that the notice as to the information and evidence necessary to establish increased ratings or earlier effective dates was not issued until the March 2006 letter, which was subsequent to issuance of the September 2004 rating decision on appeal. As such, the VCAA notice was deficient as to timing. The Board notes that the veteran, however, has not been prejudiced from this error because the denial of the claims in this appeal renders moot any question as to the appropriate disability rating or effective date to be assigned. See Sanders, supra.; Simmons, supra. The Board notes at this point that the RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claims. The record includes service records, private medical records, and VA treatment records. The Board notes that as the salient issue is whether or not new and material evidence has been received to reopen the veteran's claims, a VA examination is not necessary to adjudicate the claims on appeal. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide these claims. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with the claims. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims. Analysis In a December 1947 rating decision, the veteran's claim of entitlement to service connection for a chest disability was denied. In a December 1990 rating decision, the veteran's claim of entitlement to service connection for a left shoulder disability and his application claim to reopen his claims of entitlement to service connection for a back and a right shoulder disability were denied. These decisions are final. 38 U.S.C.A. § 7105(c). However, when a claim is the subject of a prior final denial, it may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. In June 2004, a written communication from the veteran was accepted as a request to reopen his claims of entitlement to service connection for a back, a right elbow, a left shoulder and a chest disability. When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the present appeal, new evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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). With respect to the veteran's claim of entitlement to service connection for a chest disability, pertinent evidence received prior to the December 1947 rating decision included the veteran's service medical records which noted no injury to the chest and included a May 1946 discharge examination report which reflected the veteran's chest was examined and found to be within normal limits. The RO denied the claim, stating that there was no evidence that the veteran had any injury to his chest during active duty service. With respect the veteran's claims of entitlement to service connection for a back disability, a right elbow disability and a left shoulder disability, pertinent evidence received prior to the December 1990 rating decision included the veteran's service medical records, VA examination reports, statements from the veteran, buddy statements and private medical records. The RO denied the veteran's claims because, although the veteran's statement and the buddy statements claimed that the veteran injured various body parts in a fall during service, the veteran's service medical records were devoid of reference to any injuries during active duty service and his May 1946 discharge examination report noted that the veteran's spine and extremities were clinically evaluated and found to be normal. With respect to the veteran's claim of entitlement to service connection for a chest disability, evidence received since the December 1947 rating decision includes VA treatment records, private treatment records, copies of newspaper articles describing WWII events involving the Aircraft Carrier Hornet, and statements from the veteran describing the alleged injury in service, two of which include a statement signed by different individuals which states "I, to the best of my knowledge and belief, recall the above mentioned event to have happened and in the manner described." While some of the evidence is new, none of the evidence is material. With respect to the veteran's claims of entitlement to service connection for a back, a right elbow and a left shoulder disability , evidence received since the December 1990 rating decision includes more recent VA treatment records, private treatment records, copies of newspaper articles describing WWII events involving the Aircraft Carrier Hornet, and statements from the veteran describing the alleged injury in service, two of which include a statement signed by different individuals which states "I, to the best of my knowledge and belief, recall the above mentioned event to have happened and in the manner described." While some of the evidence is new, however, none of the evidence is material. The veteran's claims were finally denied in 1947 and 1990 because of lack of objective medical evidence of an in- service injury to the chest, back, right elbow, or left shoulder and the lack of evidence linking any current residuals of a chest, back, right elbow or left shoulder injury to his active duty service. The new evidence does not etiologically link any current residuals of a chest, back, right elbow or left shoulder injury to any incident of the veteran's active duty. Therefore, the new evidence does not raise a reasonable possibility of substantiating the veteran's claims of service connection for a chest, back, right elbow and left shoulder disability. As such, the evidence received since the December 1947 and December 1990 rating decisions is not new and material as contemplated by 38 C.F.R. § 3.156(a), and provides no basis to reopen the veteran's claims of service connection for a back, a right elbow, a left shoulder, and a chest disability. In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER New and material evidence has not been received to reopen the veteran's claim of entitlement to service connection for a chest disability. New and material evidence has not been received to reopen the veteran's claim of entitlement to service connection for a right elbow disability. New and material evidence has not been received to reopen the veteran's claim of entitlement to service connection for a left shoulder disability. New and material evidence has not been received to reopen the veteran's claim of entitlement to service connection for a back disability. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs