Citation Nr: 0610580 Decision Date: 04/13/06 Archive Date: 04/26/06 DOCKET NO. 04-08 181 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disorder, and if so, whether service connection is so warranted. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Katherine King-Walker INTRODUCTION The veteran served on active duty from November 1990 to April 1991. Both claims on appeal come to the Board of Veterans' Appeals (Board) from a June 2003 rating decision. FINDINGS OF FACT 1. By a December 1999 rating decision, the RO denied service connection for a psychiatric disorder and back disorder, and the veteran did not appeal this rating decision. 2. The veteran submitted a claim to reopen for a back disorder and psychiatric disorder in February 2002 and November 2002, respectively. 3. Evidence submitted regarding the psychiatric disorder since the December 1999 final rating decision is either cumulative, redundant, or fails to raise a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder. 4. Evidence received concerning the back disorder since the December 1999 rating decision was not considered previously and is so significant that it must be reviewed in connection with the claim for service connection. 5. The evidence fails to indicate that the veteran's back disorder was incurred in or aggravated by her active military service. CONCLUSIONS OF LAW 1. A December 1999 RO rating decision, which denied service connection for a psychiatric disorder and back disorder, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.302, 20.1103 (2005). 2. New and material evidence has not been presented concerning the claim for service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2005). 3. New and material evidence has been presented concerning the claim for service connection for a back disorder, and it is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2005). 4. The criteria for service connection for a back disorder are not met. 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claims to reopen By a December 1999 rating decision, the RO denied the veteran's claims for service connection for a psychiatric disorder and back disorder because the evidence did not reflect that the veteran's disorders were incurred in or aggravated by service. The veteran did not respond to this rating decision. Because she did not respond (i.e. file a valid notice of disagreement within one year of notification of the December 1999 rating decision), it became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302(a), 20.1103. To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108. "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). No other standard than that articulated in the regulation applies to the determination whether evidence is new and material. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The veteran's claims to reopen were submitted after the effective date of the most recent amendment of 38 C.F.R. § 3.156(a), which expressly applies only to claims filed on or after August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). Consequently, the Board is deciding this appeal under the most recent version of the relevant regulation. This regulation provides that 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 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) The evidence received subsequent to January 1998 is presumed credible for the purposes of reopening the claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995). A. Psychiatric disorder The veteran essentially asserts that the current pain she suffers from a reported back injury that happened while on active duty is the cause and/or is related to her psychiatric problems. The evidence the RO considered regarding the psychiatric disorder in its December 1999 rating decision included service medical records, which reflected no findings, complaints, or treatment for psychiatric problems, a February 1992 VA examination and VA outpatient treatment notes from 1991 to 1995. The examination noted that the veteran had been complaining of insomnia and anxiety, but no formal diagnosis for psychiatric problems was noted therein. However, an October 1995 medical note reflected that she had been complaining of, among other things, sadness, insomnia and crying spells. The examiner diagnosed her with major depression. Evidence obtained in connection with the attempt to reopen the November 2002 claim includes, a January 2004 private psychiatric examination report and VA outpatient treatment notes from 1999 to 2004. During her private examination, the veteran complained of anxiety, depressed mood, insomnia, and nervousness. Subsequently, the examiner diagnosed her with major depression with psychotic traits. Collectively, VA outpatient treatment notes reflected treatment for various psychiatric complaints, including insomnia and depression. Nothing in these records link or relates the veteran's current psychiatric problems with her time in service. Thus, although the evidence submitted may be new, it is not material or does not serve to substantiate the claim because it fails to demonstrate that the veteran's psychiatric problems were incurred in or related to her active duty service. Accordingly, the Board finds that the evidence received subsequent to December 1999 is not new, material nor provides a reasonable possibility of substantiating the claim, and therefore, does not serve to reopen the veteran's claim for service connection for a psychiatric disorder. Furthermore, since the claim is not reopened, and service connection for the back disorder is denied (as detailed below), secondary service connection is also not warranted. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). B. Back disorder The veteran asserts that she injured her back while on active duty during the Gulf War due to an attempt to prevent an oxygen tank from falling. The Form DD-214 reflects that the veteran's MOS (occupation) while on active duty was a nurse anesthetist. The evidence the RO considered regarding the back disorder in its December 1999 rating decision included service medical records, a February 2002 VA examination, and VA outpatient notes from 1991 to 1995. The examination noted no complaints of musculo-skeletal problems, including the back. VA outpatient notes indicated no complaints or treatment for back problems. Evidence obtained in connection with the attempt to reopen the February 2002 claim includes, two February 2003 lay- statements from members of the veteran's unit during the Gulf War, and a February 2003 medical opinion from a private physician. Both lay statements indicate that the veteran injured her back during the Gulf War while carrying an oxygen tank to the operating room. The private medical opinion indicates that the veteran's current back problems regarding her lumbar discs are directly related to the initial injury sustained while on active duty as described by the veteran. These documents were not considered previously and are so significant that they must be reviewed in connection with the current claim. The veteran has therefore presented new and material evidence to reopen the claim for service connection for a back disorder. Accordingly, the petition to reopen is granted and consideration may be given to the entire evidence of record without regard to any prior denials. There is sufficient evidence for the Board to make a determination on this claim on the merits (as detailed below). II. Claim for service connection for a back disorder When seeking VA service connection disability compensation, the veteran must establish that a current disability results from disease or injury incurred in or aggravated by service, 38 U.S.C.A. §§ 1110. Essentially, "service connection" may be proven by evidence, establishing that a particular injury or disease resulting in disability was incurred coincident with active duty military service, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through application of statutory presumptions, 38 C.F.R. §§ 3.303(a), 3.304. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service, 38 C.F.R. § 3.303(b). A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service, 38 C.F.R. § 3.303(d). Continuity of symptoms must be established when the condition noted in service (or presumptive period) is not, in fact shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38. C.F.R. 3.303(b). Service medical records are negative for complaints, treatment, or diagnosis of back problems, including a December 1994 and August 1993 report of medical history in which the veteran indicated that she did not have recurrent back pain. A February 1992 VA examination is also negative for musculo-skeletal problems, including the back. Post service records include VA outpatient treatment notes from July 1999 to February 2004 and private progress notes from September to October 2002. The evidence indicates that the veteran was first seen for back problems in October 1999 when she complained of back pain. Subsequently, she underwent back surgery in October 2002 for a herniated disc. Most recently, the veteran has participated in physical therapy for complaints of back pain, with right leg numbness. As described previously, the veteran submitted lay statements as well as a private medical opinion, which collectively state that she injured her back while on active duty and that the veteran's current back problems are directly related to such injury, respectively. While material, the contemporaneous evidence from her active duty period that reflected no complaints or treatment for back problems, as well as a February 1992 post-service examination record that reflected that she also had no complaints of back problems are more persuasive and probative as they are more contemporaneous with the date the reported injury occurred (1991). Furthermore, the evidence reflects that she was not treated for back problems until October 1999. Under these circumstances, the Board finds that the preponderance of the evidence is against finding that the veteran sustained any injury in service to which her current back problems may be related. Accordingly, a basis upon which to establish service connection for a back disorder has not been presented, and the appeal is denied. III. Duty to notify and assist VA has a duty to notify and assist veterans with their claims. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must be provided to a claimant before the initial unfavorable agency or original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In a January 2003 letter, VA advised the veteran of the first three elements required by Pelegrini II. Although she has never been directly advised to submit any evidence in her possession, she has been informed of the need to do so. The January 2003 letter informed her that additional information or evidence was needed to support her claim and asked her to send the information or evidence to the RO. In addition, a June 2005 supplemental statement of the case contained the complete text of 38 C.F.R. § 3.159(b)(1), which includes the "any evidence in the claimant's possession" language. More recently, it has been determined in Court that proper notice should also include information regarding (a) the evidence necessary to establish a disability rating and (b), the effective date for any disability evaluation awarded. Notice regarding (a) and (b) was not provided to the veteran, but the Board finds no prejudice in proceeding with the issuance of a final decision because as concluded above, the preponderance of the evidence is against the veteran's claim for service connection, and any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. See Bernard v. Brown, 4 Vet. App. 384 (1993). As to VA's duty to assist, the veteran's service medical records are in the case file, as are her relevant VA and private treatment records. A VA examination was conducted and the report was obtained and reviewed. There are no indications that relevant records exist that have not been obtained. VA has satisfied its duties to notify and assist and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). ORDER New and material evidence regarding the psychiatric disorder not having been submitted, the claim is denied. New and material evidence regarding the back disorder having been submitted, the claim is reopened; however, service connection is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs