Citation Nr: 0809989 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-04 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post- traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bipolar disorder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from April 1979 to July 1979, and from January 1980 to May 1980. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied requests to reopen claims for service connection for PTSD and bipolar disorder. After the RO issued the statement of the case (SOC) in August 2005, and after the appeal was transferred to the Board, the veteran submitted additional evidence pertinent to the appeal. VA regulations require that pertinent evidence submitted by a claimant be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing. 38 C.F.R. §§ 19.37, 20.1304 (2007). The veteran provided a waiver of review by the agency of original jurisdiction in July 2006. Appellate review may proceed. FINDINGS OF FACT 1. By a decision issued in September 2004, the Board denied claims of entitlement to service connection for PTSD and bipolar disorder, and that decision, which was not appealed, is final. 2. Clinical and lay evidence which reflects the veteran's own report of a history of PTSD or his belief that he currently has PTSD, is cumulative and redundant of the evidence already of record at the time of the September 2004 Board decision, and a reference to PTSD in one clinical note by a medical student does not raise a reasonable possibility of substantiating the claim. 3. Clinical and lay evidence which reflects the veteran was treated for psychiatric disorders other than a psychosis after service, or which reflects that the veteran's personality changed during service, without clinical evidence of incurrence of a bipolar disorder during service, does not establish any unestablished fact necessary to substantiate a claim for service connection for bipolar disorder, and is not new and material to reopen the claim. CONCLUSION OF LAW The Board's September 2004 decision denying entitlement to service connection for PTSD and for bipolar disorder is final, and is not reopened. 38 U.S.C.A. §§ 7104, 7252 (West 2002); 38 C.F.R. §§ 3.156, 3.384, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In that decision, the Court held that VA must notify a claimant of the evidence and information necessary to reopen a previously denied claim, and must notify the claimant of the evidence and information necessary to establish his entitlement to the underlying claim for the benefit sought, i.e., service connection. The Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence which was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, that the Secretary look at the bases for the denial in the prior decision(s) and respond with a notice letter which describes what evidence would be necessary to substantiate that element or elements required to establish service connection which were found insufficient in the previous denial(s). In this case, VA sent a letter in October 2004 that explained what new and material evidence is, and specifically advised the veteran what types of evidence would be necessary to successfully reopen either his claim for PTSD or bipolar disorder. Specifically relating to PTSD, the VA stated that what was needed to reopen the veteran's claim was a present diagnosis of PTSD. As to bipolar disorder, the RO explained that the veteran would need to provide evidence that the bipolar disorder was present in service. The letter also set forth the criteria for service connection, and advised the veteran of the evidence that VA will seek to provide, what evidence the claimant is expected to provide. At page two, the letter specifically asked the veteran to provide any evidence in his possession that might pertain to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). This notice was provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), issued in February 2005. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant has demonstrated that he understood this advice, as he submitted information in his possession to the AOJ during the pendency of the appeal. Moreover, the Board notes that the veteran is represented by an attorney. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although notice compliant with Dingess/Hartman was not sent until March 2006, the claims were thereafter readjudicated. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to cure a timing defect). However, any error in the timing of the notice to the veteran regarding the rating or effective date which may be assigned following a grant of service connection is harmless error, since the claims at issue in this appeal have been either denied, and no effective date or rating may be assigned. In addition, as noted above, the veteran is represented by an attorney, so the Board finds that any notice or timing defect did not result in prejudice to the veteran. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran to procure service medical records and pertinent treatment records and providing an examination when necessary. However, as there is a prior final denial is this case, that denial remains final until the veteran submits new and material evidence. There is no duty under the VCAA in this case to assist the veteran to develop new and material evidence. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. September 2003) ("[I]n the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion."). The veteran has submitted lay statements and private clinical records. Current VA clinical records are associated with the claims file. The service medical records were associated with the claims file prior to the final decision of record. The Board finds that all necessary notice and assistance has been accomplished, to the extent required. Significantly, neither the appellant nor his attorney has identified any additional evidence that VA is required to obtain, and the record does not otherwise indicate that such evidence is available. No further notice or assistance to the appellant is required to fulfill VA's duty to the veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review may proceed. Requests to reopen claims for service connection The veteran contends that he has submitted new and material evidence to reopen his claims of entitlement to service connection for PTSD and service connection for bipolar disorder. The previous denial of the claims for service connection for PTSD and bipolar disorder came in a September 2004 Board decision. This decision of the Board became final in the absence of appeal. 38 U.S.C.A. §7105 (2002). If service connection has been previously denied and the decision became final, the Board does not have jurisdiction to review the claim on a de novo basis in the absence of a finding that new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The VCAA states that, "[n]othing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented." 38 U.S.C.A. § 5103A(f) (West 2002). "New evidence" means evidence not previously submitted to VA decision makers; "material evidence" means 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). The evidence to be reviewed includes all evidence obtained since the last final denial. Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including a psychosis, may be presumed to have been incurred during service if the chronic disorder becomes disabling to a compensable degree within one year of the veteran's separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2007). PTSD and bipolar disorder are not included in the list of chronic disorders or in the list of disorders defined by VA as psychoses for purposes of the presumption of service connection, and no presumption of service connection is applicable. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.384 (regulatory definition of psychosis conforms VA regulations to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM IV) (4th ed. 1994), applicable to claims of service connection, effective prior to the veteran's submission of this claim). See 71 Fed. Reg. 42,758-60 (Jul. 28, 2006). In order to grant a claim, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 18 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is necessary to prove there is a current disability and to meet the nexus requirement. 1. Request to reopen claim for service connection for PTSD Only a few items of evidence which include reference to PTSD have been associated with the record since the Board issued a final decision in September 2004. Additional VA outpatient clinical records dated in August 2004 through September 2004 disclose that no diagnosis of PTSD was assigned or considered by any clinical provider. A September 2004 VA discharge summary, together with 11 other pages printed from computerized records (pages 5-17 of 20 pages printed in August 2005), discloses that no clinical provider assigned a diagnosis of PTSD or treated the veteran for PTSD. One outpatient treatment note, dated in December 2004 (pages 17-18, August 2005), includes the entry, "A/P. Addiction, Cocaine withdrawal, ? Bipolar, PTSD, Nonadherence- -mainly with addiction treatment," and, in the "Problems" section, notes "Depression/Bipolar, Addiction, PTSD." This note is electronically signed by the same provider who electronically signed two previous outpatient treatment notes, one in October 2004 and one in December 2004, which reflect no diagnosis or consideration of diagnosis of PTSD. The next entry following this December 2004 VA treatment note is a December 2004 notation that the veteran displayed threatening and violent behavior towards VA staff and was prohibited from entering the VA Medical Center property for other than emergency treatment. The treatment note discloses that no change in the veteran's medications ("continue current meds") or treatment plan was based on the notation of "? Bipolar, PTSD" or notation of PTSD in the problems list. The reference to PTSD in the December 2004 note does not, by itself, establish a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125. When considered in light of all evidence of record, this note does not establish or tend to establish a diagnosis of PTSD, since the evidence subsequent to December 2004 discloses that no diagnosis of PTSD was thereafter assigned. While "new," the reference to PTSD in that note is not "material" to raise a reasonable possibility of substantiating the claim. The Board further notes that the only other evidence added to the claims file following the last final decision on the merits consists of three pages of lay statements from two lay individuals, and approximately 25 pages of records of private clinical evaluation and treatment provided by Southeast Arkansas Behavioral Healthcare system, Inc., together with duplicative VA treatment records dated in September 2004. The lay statements and clinical records do, as stated by the veteran's attorney in August 2006 argument, disclose that lay individuals noted a change in the veteran's behavior after service and that he had run-ins with the law. The clinical records confirm the severe and chronic nature of the veteran's psychiatric illnesses, and confirm that the veteran was treated in 1981, proximate to his service discharge, at a psychiatric facility. However, the clinical records state that the veteran's 1981 treatment was for diagnoses of alcohol addiction, borderline personality disorder, and schizoid personality disorder, and that "rule out schizophrenia" was also considered. This evidence reiterates prior evidence that no clinical provider assigned a diagnosis of PTSD proximate to the veteran's service, and is unfavorable to the request to reopen the claim for service connection for PTSD. Rather, the evidence establishes that disorders for which service connection is not authorized were treated, see 38 C.F.R. § 3.303, and that a diagnosis of schizophrenia was considered in 1981 but is not currently assigned. As such, this evidence is wholly unfavorable to the veteran's claim that he has PTSD as a result of his military service. The Board's September 2004 decision acknowledges the veteran's often-repeated belief that he suffers from PTSD, but finds that there is no medical diagnosis of PTSD. As noted above, an October 2004 letter to the veteran specifically advised him that his claim for PTSD had been previously denied because there was no current diagnosis of PTSD and there were no verified stressors. The veteran's continued expressions of his belief that he suffers from PTSD are cumulative and redundant of evidence in the claims file at the time of the final decision issued in September 2004. Likewise, the Board's September 2004 decision discusses consideration of the evidence that veteran reported that he had been given LSD in service, and that this was a stressor which resulted in a current psychiatric disorder which the veteran believed was PTSD. The evidence that the veteran continues to express the beliefs that he has PTSD and that this disorder was incurred as a result of the stressor of ingestion of LSD in service is not "new" evidence, but rather is cumulative and redundant of assertions already of record. The additional "evidence" reiterating previous contentions is not "new." 38 C.F.R. § 3.156. To be material, evidence must relate to an unestablished fact necessary to substantiate the claim. The fact that a December 2004 outpatient treatment record references PTSD or possible PTSD does not, in and of itself, establish that the provider assigned that diagnosis, since the provider did not make any treatment change based on that diagnosis. The "new" private clinical records reflect that diagnoses other than PTSD have been assigned for the veteran's psychiatric disorders in 1981, 2005, and 2006, are unfavorable to the veteran's request to reopen a claim for service connection for PTSD, since those records reflect only assignment of diagnoses other than PTSD. The veteran's belief that ingestion of LSD is a stressor which could cause PTSD does not provide evidence of a verified stressor or a stressor which can be verified. 38 C.F.R. § 3.156. The lay statements submitted on the veteran's behalf are credible to establish that the veteran ingested LSD during service. Justus v. Principi, 3 Vet. App. 510 (1992) (when determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed.). However, but the Board need not accept the belief expressed in those lay statements that such ingestion may serve as a verifiable stressor as credible, since those circumstances, accepted as true, have been rejected as showing a verified stressor for purposes of service connection for PTSD. Thus, these lay statements, taken as credible, cannot serve as "new" and "material" evidence to establish a stressor. Even when all of the new evidence is considered with all of the previous evidence of record, there is still no reasonable possibility of a present medical diagnosis of PTSD, and there is no "new" information about a stressor which is not redundant of information already presented to verify a stressor and rejected. The veteran apparently believes that some of the additional evidence added to the record since the recent final Board decision is favorable to his claim. Additional evidence discussing the veteran's post-service legal problems does not establish or tend to establish a diagnosis of PTSD or occurrence of a stressor, and is, in fact, unfavorable to the claim. The overwhelming additional evidence establishes that only diagnoses other than PTSD have been assigned since the last final decision, and is, in fact, unfavorable to the claim. Because the evidence is unfavorable to the veteran, it does not raise even a vague possibility of substantiating the claim, and certainly does not raise a "reasonable possibility" of substantiating the claim., as required under 38 C.F.R. § 3.156 to support a determination that evidence is new and material. Nothing new may be accomplished with this additional evidence. The RO determined that the veteran had not submitted new or material evidence to reopen this claim. The Board agrees. In the absence of new and material evidence, the Board has no jurisdiction to reopen or adjudicate the claim. The additional evidence provided by the veteran to support his request to reopen the claim for service connection for PTSD does not raise a reasonable possibility of substantiating the claim. The appeal to reopen the claim for service connection must be denied. 2. Request to reopen claim for service connection for bipolar disorder Only a few items of evidence which include reference to bipolar disorder have been associated with the record since the Board issued a final decision in September 2004. Among the "new" evidence added to the claims file is an April 2005 private medical statement which establishes that the veteran was treated for psychiatric disorders diagnosed as borderline personality disorder and alcohol dependence soon after his service discharge in 1981. The Board noted, in its prior final decision, that service connection cannot be granted for a personality disorder or for alcohol dependence. 38 C.F.R. § 3.303. To the extent that the April 2005 clinical opinion notes that the veteran was treated for those disorders soon after service, the opinion reiterates evidence of record at the time of the prior decision. The Board accepts the April 2005 medical opinion as credible. Nevertheless, that opinion is devoid of a statement that the veteran manifested bipolar disorder in service. The statements that the veteran was treated for a borderline personality disorder and alcohol dependence soon after his service discharge in 1981 do not express an opinion that the veteran had bipolar disorder in service. As noted above, an October 2004 letter to the veteran specifically advised him that his claim for bipolar disorder had been previously denied because there was no evidence that he had bipolar disorder in service. The April 2005 medical opinion does not present "new" or "material" evidence to establish that fact. The veteran has also submitted several lay statements to the effect that he changed during service or to the effect that he was treated for psychiatric disorders chronically and continuously following service. The lay statement of FMB, submitted with other statements and a letter from the veteran's attorney in August 2006, which states that the veteran "was not the same person" after service is credible. Justus, supra. This statement does not, however, in any way, establish that the veteran incurred bipolar disorder in service. The lay statement of the veteran's brother, which states that the veteran's recreational interests changed, and that the veteran "went in one person and her came out another person" is also credible, but is not new or material to establish that the veteran incurred bipolar disorder in service. The statement of Sgt. M. L., to the effect that the veteran had an alcohol problem after service, is unfavorable to the veteran's request to reopen a claim for service connection for bipolar disorder, as that statement discusses only a disorder other than bipolar disorder. The "new" private clinical records reflecting the diagnoses assigned for the veteran's psychiatric disorder in 2005 and 2006 do not include an opinion linking the veteran's current diagnosis of bipolar disorder to his service. The 2005 and 2006; private clinical records are not, therefore, material to support the veteran's request to reopen a claim for service connection for a bipolar disorder. To be material, evidence must relate to an unestablished fact necessary to substantiate the claim. The fact that the veteran has a current diagnosis of bipolar disorder is not "material" to establish that the diagnosed disorder was incurred or manifested in service. 38 C.F.R. § 3.156. Even when all of the new evidence is considered with all of the previous evidence of record, there is still no competent medical opinion that the veteran first manifested a bipolar disorder in service, nor is there a lay statement indicating that symptoms of a bipolar disorder observable by a lay person were present in service. The veteran apparently believes that some of the additional evidence added to the record since the recent final Board decision is favorable to the veteran. However, since the additional evidence discusses such facts as the veteran's post-service legal problems, or notes that the veteran was treated proximate to service for alcohol abuse, without medical opinion that a bipolar disorder was present at that time, this evidence is, in fact, unfavorable to the claim. Because the evidence is unfavorable to the veteran, it does not raise even a vague possibility of substantiating the claim, and certainly does not raise a "reasonable possibility" of substantiating the claim., as required under 38 C.F.R. § 3.156 to support a determination that evidence is new and material. The fact that a diagnosis of bipolar disorder may be assigned for the veteran's psychiatric symptoms was noted at the time of the prior final decision. Nothing new could be accomplished on appeal with the redundant evidence to this effect. The RO determined that new or material evidence has not been received to reopen this claim, and the Board agrees. In the absence of new and material evidence, the Board has no jurisdiction to reopen or adjudicate the claim. Since the additional evidence provided by the veteran to support his request to reopen the claim for service connection for bipolar disorder is neither "new" nor "material," the appeal to reopen the claim for service connection must be denied. ORDER The appeal to reopen a claim of entitlement to service connection for PTSD is denied. The appeal to reopen a claim of entitlement to service connection for bipolar disorder is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs