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