Citation Nr: 0812512 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-32 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for a psychiatric disorder to include dysthymia, personality disorder and bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The veteran served on active duty from October 1970 to June 1972. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Offices (RO), in St. Petersburg, Florida, and in Columbia, South Carolina. The claim for a mental disorder was initially denied in a December 1979 rating decision. The veteran was notified of this decision and he did not file an appeal. Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In June 2002, the veteran's file was transferred from the RO in St. Petersburg, Florida, to the RO in Columbia, South Carolina. In March 2005, the veteran testified before the undersigned Acting Veterans Law Judge at a hearing at the RO. A transcript of that hearing has been associated with the veteran's VA claims folder. The issue of whether new and material evidence has been submitted to reopen the claim for service connection for a psychiatric disorder to include dysthymia, personality disorder and bipolar disorder was remanded in July 2006 and has been returned to the Board for review. As noted in the prior remand, at the hearing before the Board in March 2005, the veteran raised the issue of entitlement to service connection for a psychiatric disorder as secondary to the service-connected lumbar spine disability. The Board notes that the issue of service connection for depression as due to a service-connected disability was denied in an April 2003 rating decision. The veteran was notified of this decision and he did not file an appeal. This decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Board again refers the issue of whether new and material evidence has been submitted to reopen the claim for service connection for depression as due to a service-connected disability to the RO for appropriate action. FINDINGS OF FACT 1. Service connection for a nervous disorder was denied in a December 1979 rating decision. It was held that a personality disorder was a constitutional or developmental disorder and was not subject to service connection. The veteran was notified of this determination, and did not perfect a timely appeal to the decision. 2. In June 1986, in an unappealed rating action, the RO determined that new and material evidence had not been received to reopen the claim for service connection a psychiatric disorder. In August 1990, the Board determined that new and material evidence had not been received to reopen the claim for service connection a psychiatric disorder. Thereafter, the RO determined that new and material evidence had not been received to reopen the claim for service connection for a psychiatric disorder, in unappealed rating decisions in December 1993 and October 1994. 3. In September 2000, the Board determined that new and material evidence had not been received to reopen the claim for service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD). 3. Evidence associated with the claims file since the September 2000 Board decision regarding a psychiatric disorder to include dysthymia, personality disorder and bipolar disorder is cumulative and redundant, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The additional evidence received since the September 2000 Board decision is not new and material; thus, the requirements to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder to include dysthymia, personality disorder and bipolar disorder, have not been met. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Review of the record reveals that all appropriate notice and development has been accomplished. See 38 U.S.C.A. §§ 5100 et seq. (West 2002 & Supp. 2007). Here, the VCAA duty to notify and assist has been satisfied. Notice as to what evidence needed has been provided, and there is no indication that there is additional evidence or development that should be undertaken. During the pendency of this appeal, Kent v. Nicholson, 20 Vet. App. 1 (2006), was issued, which established new requirements regarding the VCAA notice and claims that had been previously denied. The Board finds that the VCAA notice issued in July 2006 adequately explained the requirements for reopening a claim of service connection. Further, the veteran was notified of the type of evidence necessary to establish a disability rating and effective date for that disability. Although the notice was not sent until after the initial rating denying the claim, the Board finds that any defect with respect to the timing of the required notice was harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Specifically, the claim was readjudicated after the notice was provided. With respect to VA's duty to assist, the record reflects that the RO has attempted to obtain all of the records in connection with the appellant's claim. For the above reasons, the Board finds that development of the record is sufficiently complete to permit a fair and just resolution of the appeal, and there has been no prejudicial failure of notice or assistance to the appellant. Reopening a claim for service connection for a psychiatric disorder In December 1979, service connection was denied for a nervous condition as there was no evidence of an acquired psychiatric disorder at that time. The veteran did not perfect a timely appeal to that determination, and it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Service connection was denied for a nervous disorder in an unappealed rating decision dated in June 1986. In August 1990, the Board determined that new and material evidence had not been received to reopen the claim for service connection, noting that a chronic acquired psychiatric disorder had not been shown in service. Thereafter, the RO determined that new and material evidence had not been received to reopen the claim for service connection for a psychiatric disorder in unappealed rating decisions in August 1991, December 1993, and October 1994. In September 2000, the Board determined that new and material evidence had not been received to reopen the claim for service connection for a psychiatric disorder, to include PTSD. The Board decision is final. 38 U.S.C.A. § 7104. However, the veteran may reopen his claim by submitting new and material evidence. 38 U.S.C.A. § 5108. "New and material evidence" is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). The veteran applied to reopen this claim in August 2002. In a June 2003 rating action, the RO denied the claim. In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); see also 38 C.F.R. § 3.303 (2007). Evidence of record at the time of the prior denial in September 2000 included the veteran's service medical records. There were no reported complaints, findings, or diagnoses regarding a psychiatric disorder during service. Further, a report of a post service VA examination conducted in May 1975 indicated that the veteran was considered psychiatrically normal. A VA diagnosis of personality disorder was reported in 1979, seven years subsequent to service discharge. Subsequent psychiatric reports (including private, VA, and Social Security Administration (SSA) records) show that the veteran received medical care for variously diagnosed psychiatric disorders to include anti-social personality, major depression, cocaine abuse, alcohol abuse, crack dependence, and dysthymia. The Board determined that none of the evidence showed that a diagnosed psychiatric disorder was causally related to military service. It must first be determined whether or not new and material evidence has been submitted such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105. Pertinent evidence associated with the claims file since the Board's September 2000 decision includes duplicate medical records, the testimony and written statements of the veteran, as well as, SSA, private and VA medical records. The veteran's written statements and testimony regarding his disorders does not add anything to his earlier statements. He continues to suggest that he has a psychiatric disorder that had its onset during service. However, without supporting medical documentation and opinions, the veteran's statements are in essence cumulative and redundant. The United States Court of Appeals for Veterans Claims (Court) has held that lay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C.A. § 5108. Some of the medical records were not part of the record at the time of the September 2000 decision. While these records show current treatment for variously diagnosed psychiatric disorders (to include marijuana abuse, rule out schizophrenia, mood disorder, and bipolar disorder), these records do not contain any medical opinion of a nexus between a psychiatric disorder and his military service. The evidence consists primarily of records of treatment many years after service that does not indicate in any way that a psychiatric disability should be service connected (i.e., that it was incurred in or aggravated by service). Such evidence is not new and material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). Because there is no reasonable possibility that the new evidence will raise a reasonable possibility of substantiating the claim, it is not "new and material" within the meaning of 38 C.F.R. § 3.156(a). The Board also considered the duplicate copies of medical records. Duplicate copies of records previously considered are not considered "new" evidence. As they have been previously considered, they do not add to the evidentiary picture. As new and material evidence has not been submitted, the application to reopen the claims for service connection for a psychiatric disability is denied. ORDER New and material evidence has not been received to warrant reopening the claim of service connection for a psychiatric disorder to include dysthymia, personality disorder and bipolar disorder, and the appeal is denied. _____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs