Citation Nr: 1037705 Decision Date: 10/05/10 Archive Date: 10/12/10 DOCKET NO. 04-20 407A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability other than PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from August 1979 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Philadelphia, PA which denied entitlement to service connection for PTSD. The RO, in a July 2010 supplemental statement of the case (SSOC) adjudicated the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, other than PTSD, to include depression. This adjudication was based on the Board's June 2010 remand, which found the issue inextricably intertwined with the issue then on appeal of entitlement to service connection for PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2005, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. In an unappealed June 1981 decision, the RO denied the Veteran's claim for entitlement to service connection for a nervous condition, to include a schizoid personality. 2. At the time of the last final denial, the evidence of record reflected that the Veteran had a diagnosis of a psychiatric disability. 3. Evidence received since the June 1981 RO decision is new; however it does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the June 1981 decision that denied a claim for entitlement to service connection for a psychiatric disability, which was the last final denial with respect to this issue, is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, and 3.326(a) (2009). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established new requirements with respect to the content of the VCAA notice for reopening claims. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Historically, in June 1981, the RO denied the Veteran's claim for service connection for a "nervous condition", to include schizoid personality; the Veteran did not file an appeal and the decision became final. In October 2001, the Veteran filed a claim for PTSD, which was denied and which she appealed to the Board. While her appeal was pending, the Court decided Clemons v. Shinseki, 23 Vet. App 1 (2009). In Clemons, the Court held that an appellant's diagnoses which arise from the same symptoms for which he is seeking benefits, do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he did submit. In VA correspondence to the Veteran dated in November 2001, January 2006, and November 2007, VA notified the Veteran of what evidence was required to substantiate the claim of entitlement to service connection for PTSD, and of her and VA's respective duties for obtaining evidence. The November 2007 letter notified the Veteran that a disability rating and effective date would be assigned in the event of award of the benefit sought. The correspondence did not address the issue of whether new and material evidence had been received to reopen a previously denied claim, because the Court had not yet decided Clemons, and the issues regarding the Veteran's "nervous condition" and claim for PTSD were not yet considered inextricably intertwined. VCAA notice as to the requirements to reopen a previously denied claim and of the reason why her claim had originally been denied in 1981, were not provided to the Veteran. However, the Board finds that the Veteran has not been prejudiced by the notice defect as, as she had actual knowledge of the requirements to reopen a previously denied claim. Such knowledge is evidenced by the content of a July 2010 SSOC, as well her accredited representative's VA Form 646, and the representative's written brief, which both style the wording of the issue as one for new and material evidence. The written brief notes that an SSOC was issued. The Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any defect in the VCAA notice. See Shinseki v. Sanders/Simmons, No. 07-1209 (U.S. Sup. Ct. April 21, 2009); 556 U.S. ____ (2009); Fenstermacher v. Phila. Nat'L Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), service personnel records, a memorandum of formal finding of lack of information, and VA examination and treatment records. Additionally, the claims file contains the statements of the Veteran in support of her claim, to include her testimony at a Board hearing. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record and for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which it has a duty to obtain. A March 2001 VA initial evaluation medical record reflects that the Veteran reported that she was prescribed Valium by a VA doctor for three months in 1987. However, a June 2001 VA record reflects that the Veteran reported that she was prescribed Valium by a VA doctor for three months in 1997. No such records are associated with the claims file; however, the Board finds that remand to obtain them is not warranted. Any such records would be from seven years or from 17 years after separation from service. The Veteran has not averred that any such records contain a medical opinion causally relating her psychiatric disability to service, merely that she was prescribed Valium for a three month period in 1987 or 1997. She notes that her "depressive symptomatology began approximately ten months" earlier, in 2000, and that she has been taking Valium primarily as a sleep aid. As noted above, the Veteran has given conflicting years as to when she was reportedly given Valium. One record reflects it was for three months in 1987 (March 2001 VA record), while another record reflects it was for three months in 1997 (June2001 VA record). Neither records would reflect clinical evidence of a continuity of symptomatology since service, as they would be from seven years or seventeen after separation from service, and she has alleged her current symptoms began in approximately 2000. The Veteran has been given substantial opportunity to submit clinical evidence or an authorization for the RO to obtain clinical evidence. A March 2007 VA examination report reflects that the Veteran had been seen by Dr. K. in January 2007. A January 2007 record is not associated with the claims file. The Board finds that a remand to obtain such a record is not warranted. The March 2007 report reflects that Dr. K. had diagnosed the Veteran with mood disorder associated with medical conditions. A subsequent opinion, dated in May 2007, by Dr. K., is associated with the claims file. The Board finds that this subsequent opinion by Dr. K., along with the March 2007 report which summarizes the January 2007 opinion, is adequate for purposes of adjudicating the claim. See Sabonis, supra. The Board notes that VA is not required to provide a medical examination to a claimant seeking to reopen a previously and finally disallowed claim prior to a determination that new and material evidence has been received. See Paralyzed Veteran's of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Circ. 2003). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to her claim. Legal criteria New and material evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). Service Connection Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2006). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). For certain disabilities, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the disability becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309 (2009). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record - including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury - to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit. The law provides that when, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a Veteran's clam, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 (2009). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Evidence of record at time of last final denial The evidence of record at the last final denial consisted of the Veteran's STRs, service personnel records, and private medical records. A June 1976 pre-enlistment private medical record reflects that the Veteran was hospitalized for 10 days in June 1976 for evaluation of epigastric distress. The doctor diagnosed the Veteran with peptic inflammatory disease without ulceration, and psychophysiologic gastrointestinal disease. The Veteran's DD214 reflects that the Veteran entered active service on August 6, 1979 and was discharged on March 11, 1980. The Veteran's report of medical history for entrance purposes, dated in August 1979, reflects that she reported that she did not have depression, frequent trouble sleeping, nervous trouble, or periods of unconsciousness. It was noted that she previously had been hospitalized for gastritis, that she had colds once a month in the winter, she had a previous left wrist fracture, previous tonsil removal, and wore glasses. An STR dated on August 19, 1979, reflects the Veteran was seen for complaints of chest pain which she reported she had from the beginning of the week, and possibly hyperventilating. She was transported to the hospital by ambulance. She was diagnosed with costochondritis. The STRs reflect that she was again seen the next day for complaints of chest pain and neck pain. Approximately, one week later, on August 27, 1979, she was brought to the emergency room by wheelchair and was "distraught and crying". She was diagnosed with bronchitis. The Veteran was seen on approximately three occasions in September 1979 for complaints of chest pain and a cough. On October 4, 1979, she was seen for numerous complaints, to include a cough and chest pains, and was diagnosed with costochondritis. On October 11, 1979, she was seen with chest pains and a cold and reported that she had passed out twice that week. An x-ray of the chest was negative. The service personnel record of current and previous assignments, reflects that in November 1979, the Veteran was transferred from Ft. G to Fort B. Within two weeks of arriving, she sought treatment for chest pains with a duration of five months and a cold. She was diagnosed with an upper respiratory infection and was provided reassurance for her chest pain. A January 1980 STR reflects that the Veteran complained of chest pains, mostly upon, or after, physical exertion. It was noted that she smoked approximately one half a pack of cigarettes a day. It was also noted that she had been seeing mental hygiene for "personnel problem." The January 1980 STR further reflects that the Veteran had fainted while running for physical training, and was hyperventilating and feeling dizzy during physical training. A February 21, 1980 STR entry reflects that the Veteran was seen at the psychiatry and neurology clinic for an evaluation. An STR approximately one week later, reflects she was undergoing a chapter 13 physical. The Board notes that Army Regulation (AR) 635-200, the Army regulation governing administrative separation from the Army, is organized by chapters. The various chapters discuss the reasons for separation and the characterization of the Veteran's discharge. Chapter 13 discusses separations, initiated by the soldier's commander, for unsatisfactory performance by a service member. A Department of the Army memorandum, entitled "Request Waiver of Rehabilitative Transfer" reflects that the Veteran's commander reported that she was "both a hazard to the military mission and to herself". A February 1980 DA Form 2496, Disposition Form, reflects that the Veteran was evaluated in response to the Commander's request for Mental Hygiene Consultation. The diagnostic impression was "schizoid personality as manifested by shyness, oversensitivity, seclusiveness, avoidance of close or competitive relationships, and often eccentricity." It was the opinion of the evaluator that separation from the army would be in the best interests of both the military and the Veteran. A February 1980 DA Form 3822-R, report of mental status evaluation, reflects that the Veteran did not have a significant mental illness, and that her thought content was normal. The Veteran's February 1980 report of medical history for separation purposes reflects that she reported that in February 1980 she was treated for depression, fear, and being unable to sleep. The physician's summary notes that a "chapter" was recommended. It was noted that the Veteran reported feeling dizzy, having chest pains, and a nervous stomach. It was further noted that she passed out with [physical training] and had a personal problem. The report also appears to reflect a suicide attempt. The Veteran's February 1980 report of medical examination for chapter 13 purposes, reflects her psychiatric evlaution was normal; however, it also notes that the Veteran was qualified for Chapter 13. A Department of the Army memorandum , dated in March 1980, informed the Veteran that her commander intended to recommend that she be discharged due to personality disorders. A March 1980 Department of the Army memorandum regarding the Veteran's discharge recommended that she be discharged due to unsuitability. An explanation for the reason for the Veteran's unsatisfactory performance states that the Veteran was not capable of performing duties assigned due to extreme personality disorder. The evidence includes a March 1981 report from C.V.K., M.D., which reflects treatment of the Veteran in October 1980 and March 1981 for a sprained ankle, hematuria, and anxiety. Subsequent to the June 1981 RO denial, but prior to its finality the VA received, and considered, a December 1980 private medical record which reflected that the Veteran had a diagnosis of endometrial hyperplasia, excessive progesterone [sic] activity and an ovarian cyst. VA also received and considered private medical correspondence dated in July 1981 which noted that she had been seen in April 1980 and treated for epigastic distress. Evidence of record since the last final denial The evidence received since the last final denial includes the statements of the Veteran. The statements reflect the Veteran's contentions that she suffers from an acquired psychiatric disability due to three sexual assaults or harassment incidents which occurred while she was in active service. She avers that she was physically assaulted in a bathroom in November 1979 while at Fort G. and that she used a knife to defend herself. She avers that in January and February 1980, while at Fort B., she was harassed by Specialist C. Finally, she avers that in February 1980, she was assaulted by Private First Class H., whom she kicked and hit with a lamp to defend herself. A February 2001 VA medical record reflects that the Veteran was "coping better with the breakup of her relationship than she was several weeks ago but is still interested in obtaining professional counseling support." March 2001 VA psychology records reflect a diagnosis of major depressive disorder, recurrent. The records reflect that the Veteran was to be treated for "significant life changes". The Veteran reported that her depressive symptomatology began approximately ten months earlier, but had intensified in the past two months following the breakup with her boyfriend of six years. The relationship was reportedly marked by "years of verbal/emotion abuse." The Veteran reported that she was sexually assaulted by a friend of her mother's when she was twelve years old. She also reported being sexually assaulted on four occasions during her seven months in the military. April 2001 VA medical records reflect a diagnosis of major depressive disorder, recurrent, and that the therapist and Veteran discussed the nature of the emotional abuse she had endured from her now ex-boyfriend during the past two years and the caregiving responsibility of her father. June 2001 VA medical records reflect that the Veteran reported that she became depressed "about one year ago, but that such symptoms have intensified during the last several months subsequent to the ending of her relationship." She also noted that she was providing 24 hour care to her father. She reported seeing a military psychiatrist for one month subsequent to military sexual trauma and being prescribed Valium by a VA doctor for a period of three months in 1997. The report further reflects that the Veteran noted a history of molestation at age 12 and two subsequent rapes at ages 15 and 17. She reported serving in the army for approximately 9 months and being sexually assaulted on three occasions. The June 2001 clinical diagnosed her with major depressive disorder, single episode, moderate. July 2001 VA medical records reflect the Veteran reported three sexual assaults over a four month period while in the service and that she was involved in disciplinary actions for those involved and also received counseling. An August 2001 VA individual therapy note reflects the appellant diagnosis of major depressive disorder, recurrent, moderate. The examiner noted: [t]his is the first time I have met with this patient who has a history significant for sexual trauma while in the military with the patient initiating a claim for post-traumatic stress disorder. Most recently, she sustained the loss of a long-term romantic relationship and the loss of the children for whom she cared and loved, who were the children of her ex-boyfriend. She also has an ongoing challenge with her chronic connective tissue disease that results in pain and obnoxious symptoms. An August 2001 VA individual therapy note reflects that the Veteran had the following significant continuing stressors: a driving under the influence incident, three prior driving under the influence incidents, the declining health of the Veteran's father, stressful contact with the Veteran's ex-boyfriend and his mother, and a history of how her military sexual trauma may have impacted her choice in partners. The examiner diagnosed the Veteran with recurrent moderate major depressive disorder with psychological factors "effecting" relapsing polychondritis and multiple medical issues. It was also noted, "r/o (rule out) dysthymic disorder, r/o PTSD secondary to MST (military sexual trauma), r/o alcohol abuse, r/o personality disorder not otherwise specified with borderline and dependent features." A March 2002 VA medical record reflects that the VA examiner considered the Veteran's alleged personal assaults and did not find a diagnosis of PTSD. The March 2002 VA medical record reflects that the Veteran reported molestation at age 12 and two rapes at age 15 and age 17. (The Veteran avers that this is an incorrect statement and that she reported two "attempted" sexual acts). Upon clinical evaluation, the examiner noted that the Veteran did not endorse the re-experiencing symptoms related to incidents of sexual assault while in the military. The examiner further noted: [w]hen queried about nightmares, the [V]eteran reported that she has "disturbing dreams," but stated that she does not remember what the content of these dreams are about. She did not report experiencing specific trauma-related nightmares. Additionally, the [V]eteran did not endorse psychological distress with exposure to cues that resemble aspects of the sexual assaults. Although the [V]eteran reported feeling discomfort around men, she reported however, that she continues to socialize in bars approximately twice per month, where she is generally around large groups of men. Additionally, the Veteran did not endorse persistent avoidance or emotional numbing. She did not endorse restricted range of affect and reported that she is able to have loving feelings and close relationship with family, friends, and past significant relationships. The Veteran endorsed persistent symptoms of increased arousal such as sleep disturbances and irritability. It is difficult to ascertain if the onset of this level of arousal is associated with the assaults or pre-dates her military service time. The patient did not endorse hypervigilance or exaggerated startle response and none was exhibited across the interview. The patient reported that since her military service time, she has been able to maintain employment and significant long-term relationships. Memory and concentration appear grossly intact. Insight and judgment appear fair. The March 2002 examiner diagnosed the Veteran with recurrent moderate depression. An April 2002 VA psychological testing report reflects that the Veteran was administered psychodiagnostic tests. Based on the testing, the Veteran was diagnosed with depression, recurrent, mild to moderate. April and May 2002 VA mental health notes reflect diagnoses of dysthymic and recurrent depression. It was noted that the Veteran's brother had recently died. A June 2002 mental health note reflects a diagnosis of recurrent depression, in remission. A May 2003 psychiatry note reflects a diagnosis of PTSD. There is no evidence of record that this diagnosis was made in accordance with DSM-IV. The note is negative for the Veteran's military service. The note discusses the Veteran's romantic relationship, and relationship with relatives. A November 2003 psychiatrist note also reflects a diagnosis of PTSD, but again does not indicate any diagnosis in accordance with DSM-IV. The note discusses the end of the Veteran's romantic relationship, the Veteran's polychondritis, and her gastrointestinal symptoms. It further notes that the Veteran described numerous ways that her military sexual trauma influenced her day to day behavior, including hypervigilance, dressing in an androgynous fashion, and finding it difficult to be open and trusting. A March 2004 individual therapy note, by the same doctor, reflects a diagnosis of dysthymic disorder. An October 2006 VA mental health note reflects a diagnosis of major depression and notes that the Veteran remained emotionally overwhelmed by her break up with her boyfriend earlier that summer. A March 2007 VA examination record reflects that the Veteran did not report any symptoms consistent with PTSD. The examiner noted that the Veteran did not have regular dreams, nightmares, or persistent memories of the alleged assaults. It was noted that she was severely depressed over the past summer due to a male friend ending a relationship with her. It is also noted that she reported an attempted molestation at age 12, and three assaults in the military. The examiner diagnosed her with recurrent major depression unrelated to military service. The examiner found that, given the Veteran's history, the depression is judged as completely unrelated to her military service. She opined that [c]haracterological features are judged to be a major factor in her general level of psychosocial dysfunction. Her most recent period of severe depression that began this past July is directly related to the dissolution of a relationship with a man, followed by the loss of her job due to medical problems. She is now unemployed and continues to have severe pain, and these factors also perpetuate the depression. A May 2007 VA mental health note reflects that the Veteran had diagnoses of major depression, mood disorder, and PTSD. A notation from the U.S. Crimes Records Center, dated in March 2010, reflects no criminal records were found regarding the Veteran's alleged in-service assaults. An NPRC record reflects no inpatient medical records were found at Womack Medical Center. The Veteran's service personnel records are negative for any reference to an assault. A February 2010 VA memorandum reflects a formal finding of lack of information required to corroborate the Veteran's claimed sexual assaults. Old and new evidence of record considered as a whole The Board finds that none of the additional evidence raises a possibility of substantiating the claim. Historically, the Veteran's claim for a psychiatric disability, then claimed and diagnosed as a nervous condition and schizoid personality, was denied because the evidence did not indicate that the Veteran had a neurosis or psychosis diagnosed in service, and there was no evidence of a psychosis during a presumptive period following separation. The Board finds that the evidence received since the last final denial is new as it was not previously in the claims file. In addition, it is not redundant or cumulative to the evidence prior to the last final denial because it contains allegations of military sexual trauma, a diagnosis of depression, and information regarding the Veteran's personal life and physical conditions. However the Board finds that the new evidence is not material. None of the evidence is indicative of a neurosis or psychosis diagnosis in service, or a psychosis during a presumptive period following service. None of the evidence establishes that the Veteran has a psychiatric disability causally related to service. To the contrary, the medical opinion of the March 2007 VA examiner is that the Veteran's depression is completely unrelated to her military service. The medical reports indicate that the Veteran was depressed and had reported the dissolution of a romantic relationship, the death of a sibling, the declining health of a family member, legal problems, and various medical problems. The newly received documents are not material as they do not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In conclusion, the Board finds that the evidence added to the record since the last final denial, is not material as it does not relate to an unestablished fact necessary to substantiate the claim (e.g. a medical nexus opinion), and that the additional evidence does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board concludes that evidence has not been received which is new and material, and the claim for service connection for a psychiatric disability, other than PTSD, however diagnosed, is not reopened. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2009), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER As new and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, other than PTSD, the appeal is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs