Citation Nr: 0708134 Decision Date: 03/19/07 Archive Date: 04/09/07 DOCKET NO. 05-21 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been received to reopen a final disallowed claim for service connection for the residual conditions of a cervical spine injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from January 1977 to November 1979. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied a petition to reopen a final disallowed claim for service connection for the residual conditions of a cervical spine injury. The veteran testified before the Board sitting at the RO in February 2006. FINDINGS OF FACT 1. In March 1980, the RO denied service connection for residual conditions of a cervical fracture and subluxation at C4-5 with resultant quadriparesis and right incomplete Brown- Sequard syndrome sustained in a November 1978 motor vehicle accident. The RO determined the accident was not in the line of duty and was caused by the veteran's willful misconduct. The RO also determined that there was no aggravation of the veteran's injuries or increase in disability as a result of military hospitalization following the injuries. The veteran did not express disagreement within one year and the decision became final. 2. In March 1983, the RO denied service connection for seizures because the condition was reasonably attributed to the injuries sustained in the November 1978 motor vehicle accident and not due to an earlier motorcycle accident in October 1977. The veteran did not express disagreement within one year and the decision became final. 3. Testimony, statements, medical records, and decision documents relevant to the diagnosis, treatment, and service connection for post-traumatic stress disorder and alcohol abuse received since March 1980, although new, are not material to the reason for the previous denial of service connection for a cervical spine injury and do not raise a reasonable possibility of substantiating the claim. 4. Testimony received since March 1980 relevant to actions of an unnamed police officer prior to the November 1978 motor vehicle accident, although new, are not material to the reason for the previous denial and do not raise a reasonable possibility of substantiating the claim. 5. Testimony and copies of service medical records received since March 1980 relevant to inadequate medical care in a military hospital in November 1978 are not new since the description of events and the service medical records were previously considered by adjudicators. CONCLUSION OF LAW No new and material evidence has been received to reopen a final disallowed claim for service connection for the residual conditions of a cervical spine injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in February 2004; and a rating decision in March 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the June 2005 statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The veteran received multiple injuries including a cervical spine fracture in a motor vehicle accident in service in November 1978. The fracture caused incomplete paralysis of all four extremities. In January 1979, a military investigator concluded that the injuries were not incurred in the line of duty and were caused by the veteran's misconduct. A military hospital blood test after the accident showed that the veteran's blood alcohol content was 219 mg/dl. A police report dated the day after the accident noted that the veteran was operating a motor vehicle without a license in his possession and that his blood alcohol content was 0.23 percent. The report also noted that contributing factors included exceeding the speed limit, improper overtaking of another vehicle, and driving while intoxicated. In a March 1980 administrative decision, a VA adjudicator determined that the veteran's cervical spine injuries were not in the line of duty and were caused by the veteran's willful misconduct. Later that month, the RO denied service connection for the residual conditions of a cervical spine fracture citing the military investigation and the VA administrative decision. The RO also reviewed the veteran's service medical records including the records of post- accident treatment at military and VA facilities. The RO determined that there was no evidence of aggravation or the incurrence of additional injuries as a result of military medical treatment including care associated with the veteran's fall from his hospital bed twenty days after the accident. The veteran did not express disagreement and the decision became final. In March 1983, the RO denied a claim for service connection for seizures. After a review of the service and VA medical records and a March 1982 letter from a private physician, the RO determined that the veteran's seizures were a consequence of the November 1978 automobile accident and were caused by the veteran's willful misconduct. The veteran did not express disagreement and the decision became final. The veteran contends that new and material evidence shows that the accident was not due to his willful misconduct and that at least some of his cervical spine injuries were incurred or aggravated by improper medical care at a military hospital. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unsubstantiated 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In a March 2003 statement, in an April 2005 notice of disagreement, and in his Board hearing in February 2006, the veteran stated that the November 1978 motor vehicle accident was not due to his own misconduct. The veteran provided details of several traumatic events that occurred in service prior to the accident and stated that he had abused alcohol as a means of self-medication. In February 2004, the RO granted service connection and a 70 percent rating for post- traumatic stress disorder (PTSD) and a total rating based on individual unemployability. In June 2005, the RO granted service connection for alcohol abuse secondary to PTSD. The veteran stated that the medical and lay evidence and VA decision documents related to these disorders are new and material evidence that demonstrate that the November 1978 motor vehicle accident was secondary to his service-connected PTSD and alcohol abuse. In his Board hearing, the veteran stated that he was intoxicated the night of the accident. He further stated that approximately three to four miles prior to the accident a police officer stopped the vehicle in which he was riding and directed him to drive the vehicle. A February 2006 lay statement from the veteran's mother described the same events. The veteran stated that the action by the police was not noted in the investigation reports. Therefore, VA had relied on an improper investigation. In his Board hearing, the veteran stated that he was not paralyzed on arrival at the military hospital immediately after the accident. However, he was allowed to stand up and then fell and became paralyzed due to inadequate medical attention. He also stated that he fell from his bed twenty days later and sustained additional injuries, again due to negligent care. The veteran submitted highlighted copies of hospital records in support of his contentions. He noted entries that showed that he could move his upper extremities on arrival, but later showed neurological deficits. He and his mother also stated that hospital personnel initially had optimistic diagnoses and that his condition after the two incidents was more severe. The Board concludes that lay and medical evidence and VA decision documents related to the veteran's PTSD and alcohol abuse are new but are not material to the reason for denial of service connection in March 1980 and March 1983. The willful misconduct cited by both military investigators and VA adjudicators was not the act of alcohol abuse. Rather, the willful misconduct was the veteran's well-established act of choosing to operate a motor vehicle while intoxicated. Even if the evidence suggests that the veteran was abusing alcohol as self-medication for a service-connected mental disorder, nothing in the medical evidence shows that the disorders compelled the veteran to choose to operate a vehicle while in an intoxicated state. No new and material evidence has been submitted to refute the determination that the veteran was operating a motor vehicle at high speed while intoxicated and that this act was the proximate cause for his injuries. Any correction of the military police and investigative reports must be submitted to the service's Board of Correction of Military Records as they are not under VA's jurisdiction. The Board concludes that the testimony related to the actions of a police officer is new but is not material to the reason for denial. For the purposes of this analysis, the testimony is presumed credible even though the events were not described in any earlier reports, statements, or testimony. Regardless, the alleged wrongful act by a police officer, directing the intoxicated veteran to drive a car, does not excuse or mitigate the veteran's willful misconduct of choosing to continue to drive. There is no indication that he was forced to do so. Therefore, the testimony is not material to the determination that the veteran was operating a motor vehicle while intoxicated and that this act was the proximate cause for his injuries. Finally, the Board concludes that the testimony and copies of military hospital treatment reports related to the contentions of improper medical care are cumulative of evidence previously considered and therefore are not new evidence. All service medical records were in the file and were previously considered by VA adjudicators in March 1980 and March 1982. Previous statements of the veteran's descriptions of improper care were considered. The RO determined from a review of medical records that military medical care did not cause or aggravate his injuries. No contrary medical opinions have been received. The statements by the veteran and his mother are considered credible to the extent that they represent their actual opinions. However, as laypersons, they do not possess the necessary knowledge of medical principles, and their assertions, standing alone, are not probative as to the etiology of the veteran's current symptoms. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, there is no new evidence regarding negligent medical care as the cause for the veteran's cervical spine injuries. As no new and material evidence has been submitted since the last final disallowance of the claim, the Board must deny the petition to reopen the claim for service connection for the residual conditions of a cervical fracture and subluxation at C4-5 with resultant quadriparesis, right incomplete Brown- Squard syndrome and seizures. The preponderance of the evidence is against this claim, and the "benefit of the doubt" rule is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The petition to reopen a claim for service connection for residual conditions of a cervical spine injury is denied ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs