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