Citation Nr: 0809997	
Decision Date: 03/26/08    Archive Date: 04/09/08

DOCKET NO.  06-11 160	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim for service connection for depressive disorder 
with psychotic features, secondary to service-connected 
residuals of a fracture and scar of the left middle finger.

2.  Entitlement to effective date earlier than September 5, 
2003, for service connection for a left finger scar, 
currently rated 10 percent disabling.


ATTORNEY FOR THE BOARD

R. Morales, Associate Counsel




INTRODUCTION

The veteran served on active duty from February 1978 to April 
1982.

This appeal for an earlier effective date for service 
connection for a scar comes before the Board of Veterans' 
Appeals (Board) from a November 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
San Juan, Puerto Rico, which granted service connection, 
assigned a 10 percent rating, and assigned an effective date 
of September 5, 2003.

The veteran originally filed a claim for a mental disorder in 
July 1997.  Throughout the course of the appeal, the mental 
disorder claim as been characterized as one for nerves, 
anxiety, adjustment disorder, and depression.  The Board 
finds it is best characterized as it is listed on the title 
page of this decision.  On appeal from a rating decision of 
July 1999, it was denied by the Board in May 2003.  The 
veteran filed to reopen his claim for a mental disorder in 
March 2005, and the claim was denied in a July 2005 rating 
decision, from which this appeal originates.

In his January 2006 notice of disagreement with the effective 
date assigned for the scar, the veteran also disagrees with 
the 10 percent rating assigned for that disability.  It does 
not appear that a statement of the case (SOC) has been issued 
on this matter.  See Manlincon v. West, 12 Vet. App. 238 
(1998).  The claim for a higher initial rating for a service-
connected scar is REMANDED to the RO via the Appeals 
Management Center in Washington, DC.  VA will notify the 
appellant if further action is required.


FINDINGS OF FACT

1.  A May 2003 Board decision which denied the veteran's 
claim of entitlement to service connection for a mental 
disorder was a final decision.

2.  The veteran submitted new evidence of treatment and 
current level of disability, but it is not related to an 
unestablished fact necessary to substantiate the claim.

3.  The veteran has had a left middle finger scar since 
service and filed an original claim for an increased rating 
for a left middle finger disability on August 23, 1990.


CONCLUSIONS OF LAW

1.  New and material evidence pertinent to the claim of 
entitlement to service connection for a mental disorder has 
not been presented and the claim cannot be reopened.  See 
38 U.S.C.A. § 5108 (West 2002), 38 C.F.R. § 3.156(a) (2007).

2.  The criteria for an earlier effective date of August 23, 
1990, for a left middle finger scar have been met.  38 
U.S.C.A. § 5110(a) (West 2002), 38 C.F.R. §§ 3.155, 3.157, 
3.158, 3.159, 3.400(b)(2)(i), 3.400(o)(2) (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Mental Disorder Claim

The veteran contends that a mental disorder is caused by a 
service-connected left finger disability.

A.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the VA has a duty to notify and assist veterans in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  
Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
veteran 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); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the veteran of 
any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the veteran is expected to provide; and (4) 
must ask the veteran to provide any evidence in her or his 
possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).

A veteran attempting to reopen a previously adjudicated claim 
must be notified of the elements of his claim and of the 
definition of "new and material evidence."  Notice must be 
given of precisely what evidence would be necessary to reopen 
a claim, depending upon the basis of any previous denial of 
the claim.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).

The VCAA duty to notify was satisfied by way of a letter sent 
to the veteran in April 2005 that fully addressed all four 
notice elements and was sent prior to the initial AOJ 
decision in this matter.  The letter informed the veteran of 
what evidence was required to substantiate the claim and of 
the veteran's and VA's respective duties for obtaining 
evidence.  The veteran was also told that it was his 
responsibility to submit records that would support his 
claim.  In essence, he was asked to submit evidence and/or 
information in her or his possession to the AOJ.  The letter 
informed the veteran as to what type of evidence qualified as 
"new" and "material" and explained why the veteran's claim 
was previously denied.

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 veteran 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.  
The veteran received notice regarding disability evaluations 
and effective dates in May 2006.  Although this was 
subsequent to final adjudication of the claim, the veteran 
was not prejudiced thereby, as his request to reopen the 
claim is denied herein.

In addition, the duty to assist the veteran to develop the 
claim is fulfilled.  VA has a duty to assist the veteran in 
the development of the claim.  This duty includes assisting 
the veteran in the procurement of service medical records and 
pertinent treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The 
Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained and the veteran 
has submitted private and VA treatment records, including his 
updated VA outpatient treatment records.  Although the 
veteran has not been afforded a VA examination for his mental 
disorder, the Board finds that no such examination is 
necessary, since new and material evidence has not been 
submitted.  38 C.F.R. § 3.159(c) (4).  Significantly, neither 
the veteran nor his representative has identified, and the 
record does not otherwise indicate, any additional existing 
evidence that is necessary for a fair adjudication of the 
claim that has not been obtained.  Hence, no further notice 
or assistance to the veteran is required to fulfill VA's duty 
to assist the veteran in the development of the claim.  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).

The record establishes the veteran was afforded a meaningful 
opportunity to participate in the adjudication of the claims.  
See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  All 
requirements of the duty to notify the veteran and the duty 
to assist the veteran are met.

B.  New and Material Evidence to Reopen the Claim

A claim that has been denied, and not appealed, will not be 
reopened.  See 38 U.S.C.A. §§ 7104(b), 7105(c), 38 C.F.R. §§ 
3.104(a), 3.160(d), 20.302(a).  The exception to this rule 
provides that if new and material evidence is presented or 
secured with respect to the disallowed claim, the Secretary 
shall reopen the claim and review the former disposition of 
the claim.  See 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156.

"New evidence" means existing evidence not previously 
submitted to agency decisionmakers.  "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.  See 38 C.F.R. § 
3.156.  When determining whether a claim should be reopened, 
the credibility of the newly submitted evidence is to be 
presumed.  See Justus v. Principi, 3 Vet. App. 510 (1992).

The veteran's claim for service connection for a mental 
disorder was originally denied in a July 1999 rating 
decision, which found that the claim was not well-grounded.  
In a May 2003 decision, the Board denied the veteran's claim, 
finding that the record did not show treatment for a mental 
disorder in service or that the veteran's mental disorder was 
related to a service-connected left middle finger disability.

The veteran has submitted VA outpatient treatment records.  
These records show treatment for a mental disorder.  In 
September 2004, November 2004, December 2004, January 2005, 
and May 2005, the veteran reported feeling anxious, 
depressed, isolated, poorly motivated, irritated, 
uninterested in daily life, and having trouble sleeping.  He 
was isolated with no close friends or hobbies, though he 
communicated well with his wife.  This evidence was not 
previously submitted, and is therefore "new."

The evidence submitted, while new, does not relate to a fact 
not previously established.  It does not show aggravation or 
a relationship to service.  It merely shows treatment and 
current level of disability, evidence considered in the 
previous Board denial.  Therefore, it cannot be considered 
"material."  New and material evidence has not been 
submitted, and the claim for service connection for a mental 
disorder cannot be reopened.

The preponderance of the evidence is against the veteran's 
claim.  As the evidence is not in equipoise, the provisions 
of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not 
applicable to warrant a more favorable result.  Therefore, 
the claim for cannot be reopened.

Left Middle Finger Scar Claim

The veteran contends he is entitled to an earlier effective 
date for the grant of service connection for a scar on the 
left middle finger.  He requests that the date be fixed as 
July 18, 1997.  

A.  Duties to Notify and Assist

The VCAA describes VA's duty to notify and assist claimants 
in substantiating a claim for VA benefits.  See 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).  
Here, the Board is granting the veteran's request for an 
earlier effective date for a scar.  Thus, no further 
discussion of the VCAA is required.

B.  Earlier Effective Date for Service Connection

The effective date of an original claim is the date of 
receipt of the claim or the date entitlement arose, whichever 
is later. 38 C.F.R. § 3.400 (2007).  A "claim" is defined 
in the VA regulations as "a formal or informal communication 
in writing requesting a determination of entitlement, or 
evidencing a belief in entitlement, to a benefit."  38 
C.F.R. § 3.1(p) (2007).  An informal claim is "[a]ny 
communication or action indicating intent to apply for one or 
more benefits." 38 C.F.R. § 3.155(a) (2007). Such an 
informal claim must identify the benefit sought.  Id.  VA 
must look to all communications from a claimant that may be 
interpreted as applications or claims - formal and informal - 
for benefits and is required to identify and act on informal 
claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 
198 (1992).

In the November 2005 rating decision, the veteran was 
assigned an effective date of September 2003, the date of a 
VA examination which noted the scar.  However, the Board 
notes that the scar at issue is from surgery performed in 
service, and therefore would have existed since the veteran's 
discharge from service.  In fact, medical records from 
February 1992 and later dates note the scar.  Thus, the 
veteran is entitled to service connection for the scar from 
the effective date of the original claim for an increased 
rating for the left middle finger disability.

The veteran was granted service connection for his left 
middle finger disability in September 1982, effective April 
1982.  He did not appeal that decision and it became final.  
In August 1990, the veteran submitted a statement requesting 
that VA reevaluate his service-connected left middle finger 
disorder.  No action was taken on that claim, and the veteran 
filed another request for an increased rating in July 1997.  
The claim was denied in December 1997, leading eventually to 
the November 2005 Board decision which ordered a separate 
rating for the scar.

The Board finds that the veteran's original claim for an 
increased rating for his left middle finger disability was 
submitted in August 1990.  As the now separately-evaluated 
scar was previously encompassed in the left middle finger 
disability, the Board finds that the claim at issue was 
submitted in August 1990.  As the veteran's scar pre-existed 
the date on which claim was filed, he is entitled to an 
effective date of August 23, 1990, the date on which the 
claim was received. 


ORDER

No new and material evidence having been submitted, the 
appeal to reopen a claim for service connection for a mental 
disorder is denied.

The appeal for an effective date prior to September 5, 2003, 
is granted, and an effective date of August 23, 1990, is 
awarded, subject to law and regulations governing the 
effective date of an award of monetary compensation; the 
claim is granted to this extent only.




REMAND

The veteran is entitled to an SOC which addresses his claim 
of entitlement to a higher initial rating for a scar, if that 
has not already been done.  Manlincon, 12 Vet. App. at 240-
41, VAOPGCPREC 16-92.  The issue should be returned to the 
Board after issuance of the SOC only if the veteran files a 
timely substantive appeal.  The veteran should be informed 
that the submission of a substantive appeal as to this issue 
has not been accomplished, and the veteran should be 
specifically advised as to the length of time he has to 
submit a timely substantive appeal.  See Smallwood v. Brown, 
10 Vet. App. 93, 97 (1997).

Accordingly, the case is REMANDED for the following action:

1.  Additional VCAA notice under 38 
U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) must 
be provided to the veteran, including a 
description of the provisions of the 
VCAA, such as through the text of 38 
C.F.R. § 3.159 as revised to 
incorporate the VCAA, notice of the 
evidence required to substantiate the 
claim, and notice of the claimant' s 
responsibilities and VA's 
responsibilities in developing the 
evidence, including what evidence the 
claimant is responsible to obtain and 
what evidence VA will obtain, and a 
request that the claimant provide any 
evidence in her or his possession that 
pertains to the claim in accordance 
with 38 C.F.R. § 3.159(b)(1).

2.  Afford the veteran an opportunity 
to submit or identify any evidence 
pertinent to his claim that he is 
entitled to a higher initial rating for 
a scar, including VA treatment records.

3.  Issue a SOC as to the claim for a 
higher initial rating for a scar, if 
that has not already been done.  
Manlincon, supra.  If the decision 
issued in the SOC remains adverse to 
the veteran, the veteran should be 
informed that he must file a timely and 
adequate substantive appeal if he 
wishes to appeal the claim to the 
Board.  See 38 C.F.R. §§ 20.200, 
20.202, and 20.302(b).  The veteran 
must be informed of the time period 
allowed for perfecting a timely appeal, 
including information as to the 
specific date by which the appeal must 
be received by VA as well the 
information supplied in the form 
letter.

Thereafter, the claim for a higher initial rating for a scar 
should be returned to the Board for further appellate 
consideration only if the veteran submits a timely 
substantive appeal and all other procedural due process has 
been completed.  The Board intimates no opinion, either 
factual or legal, as to the ultimate conclusion warranted in 
this case.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).



_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a 
decision of the Board on the merits of your appeal.  
38 C.F.R. § 20.1100(b) (2007).



 Department of Veterans Affairs