Citation Nr: 0811911 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-10 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a personality disorder. ATTORNEY FOR THE BOARD Jennifer R. White, Law Clerk INTRODUCTION The veteran served on active duty from April 1995 to July 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The veteran has submitted a claim for service connection for an acquired psychiatric disorder to include depression. Such matter has not been adjudicated by the RO, and is referred to the RO for appropriate action. In this regard, in the recent case of Boggs v. Peake, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that claims based upon distinctly diagnosed diseases or injuries should be considered distinct claims for purposes of 38 U.S.C. § 7104(b). Boggs v. Peake, --- F.3d ----, 2008 WL 783368 (C.A.Fed. March 26, 2008). In this case, the 1997 rating decision denied service connection specifically for a personality disorder, and the June and December 2004 rating decisions specifically declined to reopen the claim for service connection for a personality disorder. None of the rating decision code sheets reflect a denial of an acquired psychiatric disorder; rather, they only reflect the denial of a personality disorder. Thus, the only issue on appeal is that listed on the cover page. FINDINGS OF FACT 1. The May 1997 rating decision, which denied the claim of entitlement to service connection for a personality disorder, is final. 2. The evidence received since the May 1997 rating decision does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for a personality disorder and does not raise a reasonable possibility of substantiating the veteran's claim. CONCLUSION OF LAW The evidence received since the final May 1997 rating decision, which denied the claim of entitlement to service connection for a personality disorder, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence she has in her possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in an April 2004 letter, issued prior to the decision on appeal, the RO provided notice to the veteran regarding the basis for the prior denial of her claim. The letter further advised her of what information and evidence is needed to reopen her previously denied claim and to substantiate a claim for service connection, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in her possession that pertains to the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The record also reflects no error in the duty to assist. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service medical records, a VA examination report, and post service medical records. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, and there has been a complete review of all the evidence. Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate disability rating or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent). New evidence means existing evidence not previously submitted to agency 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The RO originally denied service connection for a personality disorder in a May 1997 rating decision. The veteran was notified of the decision the next month. She did not appeal. Thus, the May 1997 decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2007). Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The veteran attempted to reopen her claim in March 2004, which was subsequently denied by a June 2004 decision. Following the submission of additional argument and evidence, the claim to reopen was denied in December 2004 decisions. The evidence of record at the time of the May 1997 decision included service medical records and a VA examination report. In this regard, service medical records indicate the veteran was diagnosed with a personality disorder after a suicide attempt. The veteran's personnel records indicate she was subsequently discharged for a personality disorder. The veteran underwent a VA mental examination in April 1997. The examiner provided an Axis I diagnosis of "no diagnosis", and an Axis II diagnosis of personality disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). The pertinent evidence added to the record since the May 1997 rating decision consists of private medical records. These records include treatment notes from Einstein Medical Center detailing the veteran's knee pain and mental health treatment records from Kirkbride Center. The records received from Kirkbride Center consistently indicate the veteran has an Axis I diagnoses of depressive disorder, cocaine dependency, alcohol abuse, and PCP abuse. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). After review, the Board finds that, while some new evidence has been received, such is not material. None of the newly submitted evidence addresses the veteran's personality disorder, suggests that the prior diagnoses of a personality disorder were improper, or otherwise links a personality disorder to service. Moreover, the Board notes that a personality disorder is not a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303(c) (2007); Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the veteran's claim, or raise a reasonable possibility of substantiating her claim. Therefore, the Board finds that new and material evidence has not been received and the claim for service connection for a personality disorder is not reopened. ORDER New and material evidence not having been received to reopen the claim of entitlement to service connection for a personality disorder, the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs