Citation Nr: 0811200	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  05-40 512	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia



THE ISSUE

Whether new and material evidence has been received to reopen 
the previously denied claim for service connection for post-
traumatic stress disorder (PTSD).  



REPRESENTATION

Appellant represented by:	Fleet Reserve Association



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel




INTRODUCTION

The veteran had active service from August 1973 to November 
1975.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2004 RO rating action that 
denied the veteran's petition to reopen the previously-denied 
claim of service connection for PTSD.  



FINDINGS OF FACT

1.  All notification and development action needed to fairly 
adjudicate the issue on appeal has been accomplished.  

2.  Service connection for PTSD was denied by an RO rating 
action in October 1996; the veteran did not file a 
Substantive Appeal.  

3.  The evidence received since the October 1996 rating 
action is either cumulative or redundant of evidence of 
record at the time of the prior denial, does not relate to 
unestablished facts necessary to substantiate a claim for 
service connection, and does not raise a reasonable 
possibility of substantiating the claim.  



CONCLUSIONS OF LAW

1.  The October 1996 RO decision denying service connection 
for PTSD is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 20.302, 20.1103 (2007).  

2.  As evidence received since October 1996 is not new and 
material, the criteria to reopen the claim of service 
connection for PTSD are not met.  38 U.S.C.A. § 5108 (West 
2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Initially, the Board notes that, in November 2000, the 
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 
106-475, 114 Stat. 2096 (2000), was signed into law.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To 
implement the provisions of the law, VA promulgated 
regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2003).  

VCAA and its implementing regulations include, upon the 
submission of a substantially complete application for 
benefits, an enhanced duty on the part of VA to notify a 
claimant of the information and evidence needed to 
substantiate a claim, as well as the duty to notify the 
claimant what evidence will be obtained by whom.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b).  

In addition, they define the obligation of VA with respect to 
its duty to assist a claimant in obtaining evidence.  38 
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Considering the claims on appeal in light of the duties 
imposed by VCAA and its implementing regulations, the Board 
finds that all notification and development action needed to 
fairly adjudicate the claim on appeal has been accomplished.  

Specific to requests to reopen, the claimant must be notified 
of both the reopening criteria and the criteria for 
establishing the underlying claim.  See Kent v. Nicholson, 20 
Vet. App. 1 (2006).  

In March 2004, prior to the decision on appeal, the RO sent 
the appellant a letter advising him of the elements required 
to reopen a previously-denied claim by submission of new and 
material evidence; the letter defined "new evidence" as 
evidence not previously submitted or considered, and 
"material evidence" as evidence bearing directly and 
substantially upon the specific matter under consideration or 
evidence relevant to the specific issue being claimed.  

The letter also informed the veteran that in order to 
establish entitlement to service connection the evidence must 
show a current disability, a disease or injury in service, 
and a relationship between the current disability and an 
injury, disease or event in military service.  Enclosed with 
the letter was a VA questionnaire entitled Information in 
Support of Claim for Service Connection for Post-Traumatic 
Stress Disorder (PTSD).  

The veteran had more than six months in which to respond 
prior to the issuance of the rating decision in October 2004.  
The Board accordingly finds that the appellant has received 
sufficient notice of the information and evidence needed to 
support his claim on appeal under the criteria of Kent, and 
has been afforded ample opportunity to submit such 
information and evidence.  

The March 2004 letter cited above also advised the veteran 
that VA is responsible for getting relevant records held by 
any Federal agency, to include military records, Social 
Security Administration (SSA) records, and records from VA 
and other Government agencies.  The letter advised the 
veteran that that VA would make reasonable efforts to obtain 
relevant records from non-Federal agencies and entities if 
authorized by the veteran to do so.  

The Board finds that the letter cited above satisfies the 
statutory and regulatory requirement that VA notify a 
claimant what evidence, if any, will be obtained that the 
claimant, and what evidence, if any, will be obtained by VA.  
See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) 
(addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 
38 C.F.R. § 3.159(b)).  

In the decision of Pelegrini v. Principi, 18 Vet. App. 112 
(2004), the United States Court of Appeals for Veterans 
Claims (Court) held that proper VCAA notice should notify the 
veteran of: (1) the evidence that is needed to substantiate 
the claim(s); (2) the evidence, if any, to be obtained by VA; 
(3) the evidence, if any, to be provided by the claimant; and 
(4) a request by VA that the claimant provide any evidence in 
the claimant 's possession that pertains to the claim(s).  As 
explained, the first three content-of-notice requirements 
have been expressly met in this appeal.  

In the decision of Pelegrini v. Principi, 18 Vet. App. 112 
(2004), the United States Court of Appeals for Veterans 
Claims (Court) held that proper VCAA notice should notify the 
veteran of: (1) the evidence that is needed to substantiate 
the claim(s); (2) the evidence, if any, to be obtained by VA; 
(3) the evidence, if any, to be provided by the claimant; and 
(4) a request by VA that the claimant provide any evidence in 
the claimant 's possession that pertains to the claim(s).  As 
explained, the first three content-of-notice requirements 
have been expressly met in this appeal.  

The RO did not expressly fulfill the fourth content-of-notice 
requirement (a request by VA that the claimant provide any 
evidence in the claimant's possession that pertains to the 
claim) in that the RO did not advise the veteran to "give us 
all he's got."  However, the Board finds that the 
requirement has been constructively advised to do so.  

The veteran has been advised of the evidence required to 
support his claim, and he has been continuously advised of 
the evidence of record via the rating decision, via the 
Statement of the Case (SOC), and via the previous 
adjudication documents of the RO.  The veteran has 
accordingly been constructively invited to submit any 
evidence in his possession that relates to his claim that is 
not already of record.  

Pelegrini also held that the plain language of 38 U.S.C.A. 
§ 5103(a) requires that notice to a claimant pursuant to VCAA 
be provided "at the time" that, or "immediately after," 
the Secretary receives a complete or substantially complete 
application for VA-administered benefits.  In that case, the 
Court determined that VA had failed to demonstrate that a 
lack of such pre-adjudication notice was not prejudicial to 
the claimant.  

As indicated, in the matters now before the Board, documents 
fully meeting the VCAA's notice requirements provided to the 
veteran prior to the rating decision.  

However, the Board finds that any arguable lack of full pre-
adjudication notice in this appeal has not, in any way, 
prejudiced the veteran.  

The Board notes that 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 (2005), reversed on other grounds, Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  
 
The Board finds that, in this appeal, any arguable delay in 
issuing section 5103(a) notice was not prejudicial to the 
veteran because it did not affect the essential fairness of 
the adjudication, in that his claim was fully developed and 
readjudicated after notice was provided.  

As indicated, the RO has given the veteran notice of what was 
required to substantiate the claim on appeal, and the veteran 
was afforded opportunity to submit such information and/or 
evidence prior to the issuance of the SOC in September 2005.  

Neither in response to the documents cited above, nor at any 
other point during the pendency of this appeal, has the 
veteran informed the RO of the existence of any evidence-in 
addition to that noted hereinbelow-that needs to be obtained 
prior to appellate review.  

Hence, the Board finds that any failure on VA's part in not 
completely fulfilling the VCAA notice requirements prior to 
the RO's initial adjudication of the claim is harmless.  See 
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 
1998); Cf. 38 C.F.R. § 20.1102 (2006).  

More recently, the Board notes that, on March 3, 2006, during 
the pendency of this appeal, the Court issued a decision in 
the consolidated appeal of Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006).  

The Court held that the VCAA notice requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five 
elements of a service connection claim (veteran status, 
existence of a disability, connection between the veteran's 
service and that disability, degree of disability, and 
effective date pertaining to the disability).  

In this appeal, the veteran's status is not at issue, and as 
indicated the RO advised the veteran of the second and third 
Dingess elements (existence of a disability, connection 
between the veteran's service and that disability).  

The RO advised the veteran of the fourth and fifth Dingess 
elements (degree of disability, and effective date pertaining 
to the disability) by a letter in March 2006.  There is 
accordingly no possibility of prejudice under the notice 
requirements of Dingess in regard to the underlying claim for 
service connection.  

The Board also notes that there is no indication whatsoever 
that any additional action is needed to comply with the duty 
to assist the veteran in connection with the claim on appeal.  

The veteran's service treatment record (STR) is on file, as 
are medical records from those VA and non-VA medical 
providers that the veteran identified as having relevant 
records.  The veteran has not identified, and the file does 
not otherwise indicate, that there are any other VA or non-VA 
medical providers having additional records that should be 
obtained before the appeal is adjudicated by the Board.  

The veteran has been advised of his entitlement to a hearing 
before the RO's hearing officer and/or before the Board, but 
he has not requested such a hearing.

Finally, the Board finds no reason to remand for medical 
examination at this point, as the VCAA's duty to assist under 
38 U.S.C.A. § 5103A is not triggered unless and until a 
previously-denied claim is actually reopened. As the Board's 
action below denies the veteran's petition to reopen his 
claim, the VCAA does not require a new VA examination.  

Further, medical examination is not required if the appellant 
has not presented a prima facie case for the benefit claimed.  
See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See 
also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 
2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per 
curiam).  As explained in detail hereinbelow, the veteran has 
not presented a prima facie case because he does not have 
either a medical diagnosis of PTSD or a verified stressor.  

There is accordingly no VCAA requirement to remand for a new 
medical examination, nor any practical purpose to be served 
thereby.  Remands that would only result in imposing 
additional burdens on VA, with no benefit flowing to the 
claimant, are to be avoided.  Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).  

Under these circumstances, the Board finds that the veteran 
is not prejudiced by the Board proceeding, at this juncture, 
with an appellate decision on the claim herein decided.  


II.  Analysis

The veteran originally claimed service connection for PTSD in 
May 1996.  After a period of development, the RO issued a 
decision in October 1996 denying service connection, based on 
the RO's determination that the veteran had not shown a 
diagnosis of PTSD or a verifiable stressor.  

The veteran filed a Notice of Disagreement (NOD) in January 
1997, and the RO issued a Statement of the Case (SOC) in May 
1997.  The RO issued a Supplemental SOC (SSOC) in October 
1998 specifically advising him that to preserve an appeal to 
the Board a Substantive Appeal would be required not later 
than December 7, 1998.  The veteran did not appeal.  

As the veteran did not appeal the RO's decision in October 
1996, that decision is final as to the evidence then of 
record, and is not subject to revision on the same factual 
basis.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  
 
Under pertinent legal authority, VA may reopen and review a 
claim that has been previously denied if new and material 
evidence is submitted by or on behalf of the claimant.  38 
U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. 
West, 155 F.3d 1356 (Fed. Cir. 1998).  

The veteran filed the instant petition to reopen the claim in 
January 2004.  

Regarding petitions to reopen filed on or after August 29, 
2001, as in this appeal, Title 38, Code of Federal 
Regulations, Section 3.156(a) defines "new" evidence as 
evidence not previously submitted to agency decision makers 
and "material" evidence as evidence that, by itself or when 
considered with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.  See 
66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001).  

New and material evidence can be neither cumulative nor 
redundant of the evidence of record at the time of the last 
final denial of the claim(s) sought to be reopened, and must 
raise a reasonable possibility of substantiating the claim.  
38 C.F.R. § 3.156(a).  

In determining whether new and material evidence has been 
received, VA must initially decide whether evidence 
associated with the claims file since the prior final denial 
is, in fact, new.  

As indicated by the regulation cited above, and by applicable 
case law, "new" evidence is that which was not of record at 
the time of the last final disallowance (on any basis) of the 
claim, and is not duplicative or "merely cumulative" of 
other evidence then of record.  This analysis is undertaken 
by comparing the newly received evidence with the evidence 
previously of record.  After evidence is determined to be 
new, the next question is whether it is material.  

The provisions of 38 U.S.C.A. § 5108 require a review of all 
evidence submitted by or on behalf of a claimant since the 
last final denial on any basis to determine whether a claim 
must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 
(1996).  For purposes of the "new and material" analysis, 
the credibility of the evidence is presumed.  Justus v. 
Principi, 3 Vet. App. 510, 512-513 (1992).  

The evidence of record at the time of the October 1996 rating 
decision consisted of the following: STR; VA treatment 
records dating from May1985 through August 1996; medical 
records from Blue Ridge Center dating from June 1996 through 
September 1996; SSA disability file with associated VA and 
non-VA medical records.  

The evidence received since the October 1996 rating decision 
consists of the following: PTSD stressor statement by the 
veteran asserting claustrophobia while on submarine service; 
one-page VA treatment record showing the veteran's emotional 
response to Rorschach inkblot test in April 1996 (no 
diagnosis); Marion County Correctional Treatment Center 
Psychosocial Assessment dated in July 1997 showing diagnosis 
of psychotic disorder due to central nervous system damage 
due to long-term alcohol abuse, alcohol dependence and 
dysthymia; Marion County Correctional Treatment Center 
residential program discharge summary dated in June 2002 
showing diagnosis of continuous paranoid-type schizophrenia, 
dysthymic disorder, and alcohol dependence (in remission due 
to a controlled environment); Brunswick Correctional Center 
medical treatment records dating from June 1997 to June 2004 
showing treatment for non-psychiatric complaints.  

The April 1996 Rorschach inkblot test was in the file as 
reviewed during the course of the previously-denied claim and 
is accordingly not "new" evidence.  

The Board finds that the other items identified hereinabove 
are "new" evidence in the sense that they were not before 
the adjudicator in October 1996.  

The new items of evidence, however, are not "material" 
because nothing therein shows current diagnosis of PTSD or 
verifiable stressor, which are the two elements that led the 
claim to be originally denied.  

In fact, the veteran's stressors as asserted in January 2004 
are indistinguishable from those he claimed in connection 
with the original denial of the claim and are accordingly 
redundant of statements reviewed by the RO in the course of 
the previously-denied claim.  

Accordingly, nothing in the additional evidence relates to an 
unestablished fact necessary to substantiate the claim or 
raises a reasonable possibility of substantiating the claim.  

Under these circumstances, the Board must conclude that new 
and material evidence to reopen the claim of service 
connection for PTSD has not been received, and the RO's 
decision of October 1996 remains final.  

As the veteran is this case has not fulfilled his threshold 
burden of submitting new and material evidence to reopen this 
finally-disallowed claim, the benefit-of-the-doubt doctrine 
is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 
(1993).  



ORDER

As new and material evidence to reopen the claim of service 
connection for PTSD has not been received, the appeal to this 
extent is denied.   


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


 Department of Veterans Affairs