Citation Nr: 0809759 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 01-00 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for post-traumatic stress disorder. 2. Whether the veteran filed a timely appeal for entitlement to service connection for residuals of a right knee injury. REPRESENTATION Appellant represented by: Peter J. Sebekos, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Associate Counsel INTRODUCTION The veteran had active service from February 1964 to January 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In May 2000, the Board remanded the veteran's claim for service connection for residuals of a right knee injury in order for the RO to issue a statement of the case regarding the timeliness of the veteran's substantive appeal. In June 2000, the RO informed the veteran that his substantive appeal regarding entitlement to service connection for residuals of a knee injury was not timely. In November 2000, the RO issued a statement of the case regarding the issue of timeliness of the veteran's substantive appeal as to this issue, and provided the veteran with the applicable regulations governing the timeliness of appeals. In a February 2001 rating decision, the RO denied the veteran's claim to reopen for service connection for post- traumatic stress disorder. The veteran testified at an RO hearing in October 2002. A transcript of the hearing has been associated with the claim file. In August 206 the United States Court of Appeals for Veterans Claims (Court) remanded the case to the Board pursuant to a Joint Motion for Remand. In January 2007, the Board remanded the case for compliance with the Court order. FINDINGS OF FACT 1. The Board denied reopening the claim for service connection for post-traumatic stress disorder in May 2000. 2. The evidence received since the Board's decision of May 2000 is cumulative. 3. The veteran was notified of a rating decision denying entitlement to service connection for residuals of a right knee injury on November 17, 1997. 4. In March 1998, the RO received the veteran's timely notice of disagreement to the November 17, 1997 rating decision. 5. On September 1, 1998, the veteran was furnished with a statement of the case as to the issue of service connection for residuals of a right knee injury. 6. No substantive appeal regarding the claim for service connection for residuals of a right knee injury was received within one year of the notice of decision or within 60 days of the statement of the case. CONCLUSIONS OF LAW 1. The May 2000 Board decision denying the appellant's claim to reopen for service connection for post-traumatic stress disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). 2. New and material evidence has not been received to reopen the claim for service connection for post-traumatic stress disorder and the claim is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The veteran did not enter a timely substantive appeal of the denial of service connection for residuals of a right knee injury. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. To be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) a VCAA 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 supports the claim, or something to the effect that the claimant should "submit any additional evidence that supports your claim." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). The Board notes that in Mayfield v. Nicholson, 444 F. 3d. 1329 (2006), the Federal Circuit Court held that the VCAA notice must be provided prior to the initial decision or prior to readjudication, and such duty to notify cannot be satisfied by post-decisional communications. The notices in this case predated the rating decisions. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The timing requirement enunciated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), applies equally to all five elements of a service connection claim. Id. The Board finds that the VA's duties under the VCAA and the implementing regulations have been fulfilled with respect to the claim for service connection and earlier effective date. In a VCAA letter of July 2007 the appellant was provided adequate notice as to the evidence needed to substantiate his claim. He was informed of the evidence necessary to establish entitlement, what evidence was to be provided by the appellant and what evidence the VA would attempt to obtain on his behalf; it also in essence told him to provide relevant information which would include that in his possession. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the VCAA notice did not predate the rating decision. In Mayfield v. Nicholson, 19 Vet. App. 103 (2005), the Court noted that an error in the timing of the notice is not per se prejudicial and that to prove prejudice, the appellant had to claim prejudice with specificity. In the present case, the Board finds that there was no prejudice to the appellant and any error in timing was harmless error. The Court in Mayfield noted that there could be no prejudice with an error in the timing of the VCAA notice if its purpose of affording the claimant a meaningful opportunity to participate effectively in the processing of his claim, was satisfied. In other words, the claimant should be provided VCAA notice and an appropriate amount of time to respond and proper subsequent VA process. That is what was done in the present case. In the present case, the notice was provided pursuant to a Board remand. The veteran was provided the opportunity to submit additional evidence which he did by submitting additional statements and a letter after which his claim was readjudicated in a supplemental statement of the case of October 2007. The veteran has not claimed any prejudice as a result of the timing of the VCAA letter. Therefore, to decide the appeal would not be prejudicial error. With regard to the requirement of notice with respect to the degree of disability and the effective date of the award as required by Dingess, supra, the Board finds that the appellant's claim is being denied, therefore there can be no possibility of prejudice to the appellant even if the appellant was not informed of the same in a timely manner. In regard to possible VCAA applicability to timeliness of the appeal, this is not a claim within the meaning of VCAA and it is not an evidence driven sub issue within the usual meaning of evidence. Rather, this is a jurisdictional issue. By analogy, it is the filing of a pleading. It is a documentdriven determination in the same manner that VA must decide whether there was a claim filed or a notice of disagreement filed. The events either did happen or did not happen. The Board notes that Kent v. Mayfield, 20 Vet. App. 1 (2006), presupposes that there an issue to adjudicate rather than the Board's determination that there is no jurisdiction. Providing Kent-like notice when ther is no jurisdiction would be an exercise in futility. The issue is not new and material evidence to establish jurisdicition. See Flash v. Brown, 8 Vet.App. 3322, 340 (1995), for general reasoning. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). In connection with the current appeal service medical records and VA outpatient treatment records have been obtained. Therefore, the Board finds that the VA has satisfied its duties to notify and to assist the claimant in this case. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). PTSD Applicable regulation states that new and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration which is neither cumulative nor redundant and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Evidence that is solely cumulative or repetitious in character will not serve as a basis for reconsideration of a previous decision. The Board notes that the legal standard of what constitutes "new and material" evidence was amended on August 29, 2001. This amendment is inapplicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001. 66 Fed. Reg. 45,620, 45,630 (August 29, 2001). The specific matter under consideration is entitlement to service connection for post-traumatic stress disorder (PTSD). The three elements required to show service connection for PTSD are: (1) medical evidence diagnosing post-traumatic stress disorder, (2) medical evidence establishing a link between current symptoms and an in-service stressor, and (3) credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2007). The veteran has indicated that he was not in combat, although he states that many times he was out in the field in hostile territory, riding shotgun with an M16 rifle, where his life was in danger. The Board finds that the veteran has not submitted evidence to indicate that he was engaged in combat with the enemy, and therefore there must be credible supporting evidence that the veteran's claimed in-service stressors occurred. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). Such evidence has not been submitted with the veteran's claim to reopen. In the May 2000 decision which denied the veteran's claim to reopen, the Board found that the veteran had not provided sufficient details which would assist VA in verifying his stressors, and that the veteran's description of his stressors was cumulative and redundant. The decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). Since the May 2000 Board decision, the veteran has submitted various statements as well as VA progress notes, including notes from the veteran's time as an inpatient in a VA trauma recovery program from May 2001 to June 2001, and from May 2002 to June 2002. In October 2002 he testified at an RO hearing. Further, he submitted a statement and a letter in August 2007. The Board finds that this evidence provides descriptions of stressors previously submitted to agency decisionmakers, and is cumulative and redundant. In a VA progress note dated in August 2000, the veteran reported that when in Vietnam he was with a fellow soldier when he saw a Vietnamese girl alone on the road. The other soldier abducted the girl, pulled her off into the underbrush alongside the road, and raped her. The rape became violent, and the soldier killed the woman. The soldier encouraged the veteran to participate in the rape, but the veteran did not actively engage in the abduction, rape, or murder of the young girl. The examiner noted that the veteran reported a secondary event that had also caused the veteran distress to a lesser degree. The veteran reported witnessing a soldier shot (and perhaps killed) in a bar fight in Vietnam. The veteran was not involved in the altercation, but was afraid of being injured himself and afraid that the situation could become out-of-control. The Board finds that this evidence is not new and material, as the veteran has previously described these events at a Travel Board hearing in November 1999, at an RO hearing in March 1998, in a statement submitted in October 1997. The recounting of the stressors does not provide any new information which might be verified by VA, such as specific dates, specific places, and the names of those involved in the incidents. In essence, a recounting is not new. Godwin v. Derwinski, 1 Vet. App. 419 (1991). At the October 2002 RO hearing, the veteran stated that the rape occurred on Christmas Eve 1966, that he could not remember the name of the soldier who had raped the Vietnamese woman, and that the incident was not reported to the military. He indicated that he was in the 223rd Support and Service Company, 506th Field Depot. The date of Christmas Eve 1966, as well as the veteran's company and depot were previously submitted by the veteran in December 1997. This evidence is cumulative. In June 2001 and June 2002 VA discharge summaries from the Trauma Recovery Program, the examiners noted that the veteran had witnessed incidents of atrocity directed towards the Vietnamese people. No further details of the "atrocity" are provided which might be verified by VA. Further, the Board notes that new stressors do not give rise to new claims. There is a prior denial of PTSD, with a remarkable history of insufficient information to conduct a meaningful search, and nothing has changed. In a statement submitted in March 2001, the veteran stated that he had previously named Sergeant Sanders, and that VA had never made an attempt to verify this name. He stated that if VA could provide him with the roster of soldiers from the Army of the 223rd in 1966, then the veteran could pick out the name. The Board notes that without more specific information, VA cannot verify the occurrence of an alleged stressor, as evidenced by the Army's reply to the RO's request for unit information. Prior to reopening the claim and conducting development, it is the veteran's obligation to submit new and material evidence, and this he has not done. Further, the veteran previously provided the name of Sanders in December 1997. Evidence which has been previously submitted to agency decisionmakers is cumulative. In the August 2007 letter and statement the veteran recounted the incident involving the killing of the Vietnamese girl by a U.S. solider. As noted above, this stressor had been previously considered. The veteran also stated he had seen dead bodies in Saigon. This was a stressor previously provided and considered. Finally, the veteran restated an incident when he was in a convoy and was stopped by Vietnamese who threatened to kill him. This too was a stressor previously considered. As such the evidence submitted in the veteran's statement and letter are cumulative. Based on the foregoing, the Board finds that new and material evidence has not been submitted regarding the claim to reopen for entitlement to service connection for post-traumatic stress disorder. Timeliness of Appeal The Board may not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. §§ 7104, 7108 (West 2002). An appeal to the Board consists of a timely filed notice of disagreement and, after a statement of the case is issued, a timely filed substantive appeal. The claimant has one year from the date of notification of the decision to file a notice of disagreement to initiate the appeal process. A statement of the case is then forwarded by the RO to the claimant. To complete the appeal, the claimant must then file a substantive appeal with the RO within 60 days of the mailing date of the statement of the case, or within the remaining time, if any, of the one-year period beginning on the date of notification of the decision, if such remaining time is greater than 60 days. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2007). By an October 1997 rating decision, the veteran's claim for service connection for residuals of a right knee injury was denied. The veteran was notified of this decision in a letter dated in November 17, 1997, and he was apprised of his appellate rights, VA Form 4107. The RO received the notice of disagreement with the November 17, 1997 RO decision that denied his claim to reopen for service connection for residuals of a right knee injury. He was furnished a statement of the case on September 1, 1998. The notification letter apprised the veteran of the 60-day time limit for filing a substantive appeal. The veteran did not, however, complete the final sequential step that would have perfected his appeal. He failed to submit a timely substantive appeal to the RO prior to the expiration date. The first communication from the veteran which might be construed as a substantive appeal was received at a hearing in November 1999, over a year past the notification of the decision and more than 60 days past the issuance of the statement of the case. In regard to the adequacy of notification the September 1998 letter informed him that if the supplemental statement of the case contains an disuse that was not included in the cub appeal, he had to respond within the 60 days to perfect the appeal. This notification was adequateto inform him of the time limits and steps that he was required to take. Furthermore, a copy was provided to the representative, The American Legion. Therefore, both he and his representative had notice and an opportunity to act. Furthermore, nothing in the file suggests a request to extend the time period to appeal. The Board has specifically considered the guidance established by the Federal Circuit in Savitz v. Peake. However, nothing in this case is similar to the facts in Savitz. Here there is no allegation that he filed a timely appeal or that he requested an extension. At best, the statement in the joint motion is not tied to any specific allegation or an assertion that there were misinterpreted facts. In this case, the mailbox rule does not assist the veteran. Inasmuch as the veteran did not submit a substantive appeal in a timely manner, the Board does not have jurisdiction to adjudicate his claim and, therefore, it is dismissed. 38 U.S.C.A. §§ 7104, 7105, 7108. ORDER The claim to reopen for service connection for post-traumatic stress disorder is denied. The appeal for service connection for residuals of a right knee injury is dismissed. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs