Citation Nr: 0523151 Decision Date: 08/24/05 Archive Date: 09/09/05 DOCKET NO. 00-05 564 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD L.A. Rein, Associate Counsel INTRODUCTION The veteran served on active duty from June 1965 to September 1967. This matter comes to the Board of Veterans'Appeals (Board) on appeal from an August 1999 decision by the RO in Hartford, Connecticut. The veteran was afforded a local hearing at the RO in June 2000, and a videoconference hearing before the undersigned in September 2004. Transcripts of those hearings are of record. FINDINGS OF FACT 1. In a June 1995 decision the RO denied entitlement to service connection for a psychiatric disorder. The veteran was notified of that decision and did not appeal. 2. The evidence received since the June 1995 RO decision is cumulative or redundant of evidence previously considered, or the additional evidence, by itself or in connection with evidence previously assembled, is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW The June 1995 rating decision in which the RO denied entitlement to service connection for a psychiatric disorder is final, new and material evidence has not been received, and the claim is not reopened. 38 U.S.C.A. § 7105 (West 1991); 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 20.1103 (1994); 38 C.F.R. § 3.156 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he was treated for a psychiatric disorder in service, that he has received treatment since he was separated from active duty, and that his current psychiatric disorder is a result of military service. Development of the Claim The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), which have been codified at 38 U.S.C.A. §§ 5103 and 5103A (West 2002). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in the development of their claims. VA has issued a regulation to implement the provisions of the VCAA, which is codified at 38 C.F.R. §3.159 (2004). The VCAA left intact, however, the requirement that a veteran must first present new and material evidence in order to reopen a previously and finally denied claim before the duty to assist provisions of the VCAA are fully applicable to the claim. 38 U.S.C.A. § 5103A(f) (West 2002); see also Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003); 38 C.F.R. § 3.159(c) (2004). The regulation provides that for requests to reopen submitted prior to August 29, 2001, VA will notify the veteran of any information and medical or lay evidence that is necessary to substantiate the claim. VA does not, however, have any duty to assist him in developing evidence in support of his request to reopen the previously denied claim, if that request was submitted prior to August 29, 2001. If VA determines that new and material evidence has been submitted and reopens the previously denied claim, VA is obligated to fully assist him in obtaining any evidence that may be relevant to the claim. See 38 C.F.R. § 3.159(b) and (c) (2004); see also Paralyzed Veterans of America, et. al., 345 F.3d at 1342. In general, on receipt of a claim for benefits, including an attempt to reopen a previously denied claim, VA will notify the veteran of the information and evidence not of record that is necessary to substantiate the claim. VA will also inform him of which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. VA will also request that he provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (2004). In Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a section 5103(a) notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the RO. The Court also held, however, that providing the section 5103(a) notice to the claimant after the initial decision could satisfy the requirements of the statute if the timing of the notice was not prejudicial to the claimant. Pelegrini, 18 Vet. App. at 121. In this case, the initial RO decision was made prior to November 9, 2000, the date the statute was enacted; therefore, the RO could not have complied with the timing requirement, as the statute had not yet been enacted when the claim was adjudicated. In Pelegrini the Court found that where the initial unfavorable decision was rendered prior to the enactment of the statute, the RO did not err in failing to comply with the timing requirement of the notice. The Court also found, however, that in such cases the claimant would still be entitled to a section 5103(a) notice. Pelegrini, 18 Vet. App. at 122. The RO notified the veteran of the information and evidence needed to substantiate his claim in June 2001 and October 2003 by informing him of the evidence required to establish entitlement to service connection, including the definition of new and material evidence. The RO also informed him of the information and evidence that he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. The RO informed him that although VA would make reasonable efforts to obtain the evidence he identified, it was ultimately his responsibility to provide the evidence in support of his claim. The veteran was also provided with a copy of the appealed rating decision, a statement of the case, and a supplemental statement of the case. In these documents the RO notified him of the law and governing regulations, the reasons for the determinations made regarding his claim, and the need to submit medical evidence that established entitlement to service connection. The RO also informed him of the cumulative evidence previously provided to VA or obtained by VA on his behalf, and any evidence he identified that the RO was unable to obtain. The Board finds that in all of these documents the RO informed the veteran of the evidence he was responsible for submitting, and what evidence VA would obtain in order to substantiate his claim. Quartuccio, 16 Vet. App. at 187. Although the June 2001 and October 2003 notices were sent following the August 1999 decision, the veteran has had more than four years following the initial notice to submit additional evidence or identify evidence for the RO to obtain. The veteran did not respond to the June 2001 or October 2003 notices, or otherwise identify any evidence that was relevant to his appeal. The Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103, 120 (2005), motion for review en banc denied (May 27, 2005). The Board finds in this case that the delay in issuing the section 5103(a) notice is not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that he was given the opportunity to submit additional evidence, or identify evidence for the RO to obtain, after his claim was initially adjudicated in August 1999. As will be shown below, the Board has determined that new and material evidence has not been received, and denied reopening of the claim for service connection for a psychiatric disorder. Because the veteran's request to reopen was received prior to August 2001, VA has no duty to assist him in developing evidence in support of his claim. Relevant Laws and Regulations A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1994). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is considered to be "new" if it was not previously submitted to agency decisionmakers and it is not cumulative or redundant. The evidence is "material" if it bears directly and substantially upon the specific matter under consideration and, by itself or in connection with evidence previously considered, it is so significant that it must be considered in order to fairly decide the merits of the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156 (1998). In determining if new and material evidence has been submitted, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). The Board notes that the definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. The change in the law, however, pertains only to claims filed on or after August 29, 2001. Duty to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.156 (2004)). Because the veteran's claim was initiated prior to August 2001, his claim will be adjudicated by applying the law previously in effect. Analysis The veteran's service medical records reflect that as a result of an April 1966 examination he was found to have a personality disorder with passive dependency patterns that existed prior to service. Since entering service he had demonstrated emotional problems and had difficulty getting along with people, and he was referred for a neuropsychiatric evaluation. That evaluation was conducted in May 1966. During the evaluation the veteran reported that he did not have much confidence in himself, he did not think he was liked by his peers, he didn't go out socially because he was shy and bashful, and he did not get along with his roommate. He stated that he had wet the bed occasionally for the previous two years. The psychiatrist found that the veteran showed no evidence of a psychosis, including disorganized or disintegrative thinking, delusions, or hallucinations, but that he exhibited many areas of emotional immaturity. He found it quite obvious that the veteran had serious difficulties in interpersonal relationships. He also found that the veteran was a rather helpless, extremely passive, dependent, receptive type of individual who was totally lacking in leadership qualities and could not handle the highly aggressive drives that would be essential in the type of training for which he had applied. The psychiatrist diagnosed his behavioral problems as a personality disorder with passive-dependency patterns. In May 1967 the veteran's commanding officer requested a psychiatric evaluation because he was continually on sick call for various somatic complaints and was under investigation for using marijuana. He had also demonstrated bizarre actions, including a flat affect and talking to himself. On psychiatric examination, the psychiatrist again diagnosed a passive dependent personality, severe. Manifestations included marked indecisiveness, poor judgment, an attitude of apathy toward his present situation, and numerous hypochondriacal complaints. The psychiatrist determined that the disability had not occurred in the line of duty, in that it existed prior to service. The psychiatrist recommended that the veteran be strongly considered for removal from the air police and that, if retained in the service, he be placed in a position that required close supervision. The psychiatrist also found that if his commanding officer felt that he could not be rehabilitated, he should be administratively separated from service. In a June 1967 letter the Director of Base Medical Services stated that he had personal knowledge of the veteran and it was his opinion that the veteran was totally unsuited for military duty because of his condition and that he should be administratively discharged. In August 1967 the veteran was found to be unsuitable for military service, and he was administratively discharged in September 1967. The veteran initially claimed entitlement to service connection for a nervous condition in April 1978. A May 1978 VA hospital summary indicates that he was hospitalized for an acute episode of paranoid schizophrenia. His past history was relevant for psychiatric treatment in 1973 or 1974 at the Connecticut Mental Health Center, apparently because of dissatisfactions on the job, interpersonal problems, and depression. He had been given anti-psychotic medication during the prior hospitalization, but the treating psychiatrist noted that there was no clear history of a psychotic episode prior to the spring of 1977. The veteran had been admitted to a VA hospital at that time due to racing thoughts, ideas of reference, and delusions concerning his foreman at work. He was treated with anti-psychotic medications with resolution of his acute psychosis. In a May 1978 rating decision the RO initially denied service connection for a nervous condition. The RO determined that the veteran's psychiatric symptoms in service were due to a personality disorder, for which service connection could not be granted, that he did not demonstrate the symptoms of a psychosis until 10 years following his separation from service, and that the evidence did not indicate that the psychosis was related to service. The veteran was notified of the May 1978 decision and did not appeal, and that decision is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. § 19.153 (1977). The veteran again claimed entitlement to service connection for a psychiatric disorder on multiple occasions, and each time the RO determined that new and material evidence had not been received to reopen the previously denied claim. The evidence obtained in conjunction with those claims includes private and VA treatment records showing that the veteran received treatment for schizophrenia from 1974 to 1993, including treatment at the Connecticut Mental Health Center in 1974 for paranoia, looseness of associations, and delusions of having special mind control. He was hospitalized at the Connecticut Valley Hospital from December 1981 to January 1982 for schizophrenia. The January 1982 hospital summary indicates that he had had schizophrenia since returning from the Vietnam War. He was again hospitalized for chronic schizophrenia at a private facility in March 1984, at which time the treating psychiatrist noted that his psychiatric history began in 1977. The April 1984 hospital discharge summary shows that he began hearing voices in February 1978. He underwent a VA psychiatric examination in June 1984, which resulted in a diagnosis of paranoid schizophrenia. The examiner reviewed the veteran's claims file and noted the results of the psychiatric evaluations in service. He did not find that the currently diagnosed schizophrenia was related to the symptoms shown in service. In a December 1991 statement the veteran asserted that his psychiatric disorder was caused by the treatment that he received in service. Since April 1984 he has claimed to have post-traumatic stress disorder (PTSD) as a result of his military service, which has not been substantiated by any medical evidence reflecting a diagnosis of PTSD. VA treatment records indicate that he continued to receive treatment for cocaine dependence, paranoid schizophrenia, and passive-aggressive personality traits. The records do not reflect any etiology for the psychiatric disorders. Based on the evidence shown above, in the June 1995 rating decision the RO determined that new and material evidence had not been received to reopen the claim for service connection for a psychiatric disorder. The RO found that although the evidence was new, it was not material because it did not indicate that the veteran's psychiatric disorder was related to service. The veteran was notified of the June 1995 decision and did not appeal, and that decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1994). The evidence received subsequent to the June 1995 rating decision includes VA medical records showing that the veteran continued to receive treatment for schizophrenia and substance abuse. That evidence is not new, in that it is cumulative and redundant of the evidence of record in June 1995, which showed that the veteran was being treated for substance abuse and schizophrenia. Because the evidence is not new, the Board need not consider whether it is material. See Vargas Gonzalez v. West, 12 Vet. App. 321, 327 (1999) (if the Board finds that newly presented evidence is cumulative of evidence previously considered, the analysis should end there); see also Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (records of treatment many years after service, which do not document any nexus to service, are not new and material). The evidence also includes the veteran's statements and hearing testimony. During the June 2000 hearing before the RO's Decision Review Officer he described the psychiatric evaluations and administrative proceedings that occurred in service, and the history of his psychiatric treatment since his separation from service. That evidence is cumulative of the evidence previously of record, which documented the in- service evaluations and post-service treatment. Because the evidence is not new, the Board need not consider whether it is material. Vargas Gonzalez, 12 Vet. App. at 327. During the September 2004 hearing the veteran's representative asserted that the symptoms documented during service represented the onset of schizophrenia. This evidence is new, in that the veteran had not made that assertion previously, although that argument could be presumed based on his claim for service connection. The statement is not material, however, because the representative is not competent to provide evidence of the etiology or onset of a psychiatric disorder. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Because the evidence is not probative, it cannot be material, in that it need not be considered in order to fairly decide the merits of the claim. See Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions of medical causation cannot serve as predicate to reopen a previously denied claim). In summary, some of the evidence received following the June 1995 denial of service connection is new. None of the evidence is material, however, to the issue being considered, that being whether the veteran's psychiatric disorder is related to service. The Board finds, therefore, that evidence that is both new and material has not been received, and the claim of entitlement to service connection for a psychiatric disorder is not reopened. ORDER New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a psychiatric disorder is denied. ____________________________________________ N. W. Fabian Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs