Citation Nr: 0812872	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  05-14 114A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Whether new and material evidence has been received 
sufficient to reopen a previously denied claim for service 
connection for a psychiatric disorder.


ATTORNEY FOR THE BOARD

Amy M. Smith, Associate Counsel











INTRODUCTION

The veteran served on active military duty from February 1971 
to April 1971.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2004 rating action of the 
Department of Veterans Affairs Regional Office (RO) in 
Phoenix, Arizona.  The RO apparently determined that new and 
material evidence sufficient to reopen a previously denied 
claim for service connection for a psychiatric disorder 
(previously claimed as a nervous condition) had been received 
but denied the de novo issue of entitlement to service 
connection for a psychiatric disorder.  

Although the RO has reopened the previously denied claim for 
service connection for a psychiatric disorder, the Board is 
required to address this particular issue (e.g., the new and 
material claim) in the first instance.  The Board has the 
jurisdiction to address a new and material issue and to reach 
the underlying de novo claim.  If the Board determines that 
new and material evidence has not been received, the 
adjudication of the particular claim ends, and further 
analysis is neither required nor permitted.  Any decision 
that the RO may have made with regard to a new and material 
claim is irrelevant.  Barnett v. Brown, 83 F. 3d 1380, 
1383-1384 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995).  See 
also, Jackson v. Principi, 265 F. 3d 1366, 1369 (2001) (which 
holds that the statutes make clear that the Board has a 
jurisdictional responsibility to consider whether it was 
proper for a claim to be reopened, regardless of whether the 
previous action denying the claim was appealed to the Board).  
Thus, despite the fact that in the present case the RO has 
already determined that new and material evidence sufficient 
to reopen the veteran's previously denied claim for service 
connection for a psychiatric disorder has been received, the 
Board will proceed, in the following decision, to adjudicate 
this new and material issue in the first instance.





FINDINGS OF FACT

1.  In a September 1983 decision, the RO in Los Angeles, 
California denied service connection for a psychiatric 
disorder, claimed as a nervous condition.  Following receipt 
of notification of that determination, the veteran did not 
initiate a timely appeal of the denial, and the decision 
became final.

2.  The evidence received since the RO's September 1983 
denial of service connection for a psychiatric disorder is 
new and material and raises a reasonable possibility of 
substantiating the claim.

3. No nexus between the veteran's active duty and his 
currently-shown psychiatric disorder, characterized as 
schizophrenia, has been demonstrated. 


CONCLUSIONS OF LAW

1.  The RO's September 1983 decision that denied service 
connection for a psychiatric disorder is final.  38 U.S.C.A. 
§ 7105 (West 2002) and 38 C.F.R. §§ 3.104, 20.200, 20.302, 
20.1103 (2007).

2.  The evidence received since the RO's September 1983 
determination is new and material, and the claim for service 
connection for a psychiatric disorder is reopened.  
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007).

3.  Service connection for a psychiatric disorder is not 
warranted.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties To Notify And Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative of any information, 
and any medical or lay evidence, that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 
3.159(b).  Proper VCAA notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim, (2) that VA will seek to provide, 
and (3) that the claimant is expected to provide; and (4) 
must ask the claimant to provide any evidence in his 
possession that pertains to the claim, in accordance with 38 
C.F.R. § 3.159(b)(1).  The U.S. Court of Appeals for Veterans 
Claims (Court) has held that VCAA notice should be provided 
to a claimant before the initial RO decision on a claim.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).

As to the new and material aspect of the veteran's claim for 
entitlement to service connection for a psychiatric disorder, 
the Board is granting in full the benefit sought on appeal.  
Accordingly, assuming, without deciding, that any error was 
committed with respect to either the duty to notify or the 
duty to assist, such error was harmless and will not be 
further considered.

As to the underlying de novo claim for service connection for 
a psychiatric disorder, the above notice requirements were 
satisfied by a January 2004 letter.  In addition, following 
the letter, the April 2005 statement of the case, and 
November 2007 supplemental statement of the case were issued.  

Also, to whatever extent the decision of the United States 
Court of Appeals for Veterans Claims (Court) in Dingess v. 
Nicholson, 19 Vet. App. 473 (2006), requires more extensive 
notice in claims for compensation, e.g., as to potential 
downstream issues such as assigning a disability rating or 
effective date, the Board finds no prejudice to the appellant 
in proceeding with the present decision.  As will be 
discussed in the following decision, the Board is denying the 
veteran's service connection claim.  As such, no rating or 
effective date will be assigned.  

In addition, it appears that all obtainable evidence 
identified by the veteran relative to his claims has been 
obtained and associated with the claims file.  The Board 
acknowledges that, in a statement which was received by the 
RO in January 2004, the veteran reports having received 
pertinent treatment at several hospitals in Arizona and 
California.  Later that same month, the RO sent him a release 
form in order to obtain information regarding this treatment.  
A review of the record indicates that the veteran has not 
returned the release form.  The veteran is responsible for 
providing pertinent evidence in his possession.  See Wood 
v. Derwinski, 1 Vet. App. 190, 193 (1991) & Hayes v. Brown, 
5 Vet. App. 60, 68 (1993) (in which the Court held that VA's 
duty to assist is not a one-way street and that, if a veteran 
wishes help, he/she cannot passively wait for it in those 
circumstances where his/her own actions are essential in 
obtaining the putative evidence).  It is therefore the 
Board's conclusion that the veteran has been provided with 
every opportunity to submit evidence and argument in support 
of his claim, and to respond to VA notices.  A remand to 
accord the veteran another opportunity to provide the names, 
dates, and locations of post-service psychiatric treatment is 
not necessary.  

The Board also acknowledges that the veteran has not been 
accorded a VA examination pertinent to the claim on appeal.  
However, as will be discussed in the following decision, 
service medical records are negative for complaints of, 
treatment for, or findings of a psychiatric disorder.  
Further, while available post-service medical records show a 
diagnosis of a psychiatric disorder, this condition has in no 
way been linked to the veteran's active duty.  Thus, a remand 
to accord him an opportunity to undergo a VA examination that 
specifically addresses the etiology of the currently-shown 
psychiatric disorder is not necessary.  VA's duty to assist 
is not invoked where "no reasonable possibility exists that 
such assistance would aid in substantiating the claim."  
Charles v. Principi, 16 Vet. App. 370 (2002) & 38 U.S.C.A. 
§ 5103A(a)(2).  See also & McLendon v. Nicholson, 20 Vet. 
App. 79 (2006).  

Accordingly, the Board finds that VA has satisfied its duty 
to assist the veteran in apprising him as to the evidence 
needed, and in obtaining evidence pertinent to his claims 
under the VCAA.  Therefore, no useful purpose would be served 
in remanding this matter for yet more development.  Such a 
remand would result in unnecessarily imposing additional 
burdens on VA, with no additional benefit flowing to the 
appellant.  The Court has held that such remands are to be 
avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Standard Of Review

Once the evidence has been assembled, it is the Board's 
responsibility to evaluate the record.  38 U.S.C.A. 
§ 7104(a).  When there is an approximate balance of evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 
1 Vet. App. 49, 53 (1990), the Court stated that "a veteran 
need only demonstrate that there is an 'approximate balance 
of positive and negative evidence' in order to prevail."  To 
deny a claim on its merits, the evidence must preponderate 
against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 
(1996), citing Gilbert, 1 Vet. App. at 54.

III.  Analysis

A.  New and Material Evidence

According to the evidence of record at the time of the 
September 1983 decision, service medical records were 
negative for complaints of, treatment for, or findings of a 
psychiatric disorder.  Consequently, the RO denied service 
connection for a "nervous condition."  The veteran did not 
appeal this decision to the Board.  Thus, the RO's decision 
is final.  38 U.S.C.A. § 7105, C.F.R. §§ 3.104, 20.200, 
20.302, 20.1103.
In a statement received by the RO in December 2003, the 
veteran requested that his claim for service connection for 
"mental problems" be reversed.  

A veteran may reopen a previously and finally denied claim by 
submitting new and material evidence.  38 C.F.R. § 3.156(a) 
(2007).  New evidence is defined as existing evidence not 
previously submitted to agency decisionmakers.  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).  See also Hodge v. West, 155 
F.3d 1356, 1359 (Fed. Cir. 1998).  In deciding the issue of 
whether newly received evidence is "new and material," the 
credibility of the evidence must be presumed.  Justus 
v. Principi, 3 Vet. App. 510, 512, 513 (1992).

At the time of the September 1983 RO decision, there was no 
evidence of a diagnosed psychiatric disorder.  Additional 
evidence received since that earlier decision now includes 
such evidence.  Specifically, in a January 2002 VA treatment 
report, the veteran was diagnosed with schizophrenia.

This medical evidence is clearly probative because, for the 
first time, competent evidence of a diagnosed psychiatric 
disorder has been presented.  Thus, the Board finds that the 
additional evidence received since the last prior final 
denial of service connection for a psychiatric disorder 
raises a reasonable probability of substantiating the claim 
for service connection.  This additional evidence is, 
therefore, new and material, as contemplated by the pertinent 
law and regulations, and serves as a basis to reopen the 
veteran's claim for service connection for a psychiatric 
disorder.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) 
(2007).

B.  De Novo Decision On The Merits

As the Board has determined that new and material evidence 
sufficient to reopen the previously denied claim for service 
connection for a psychiatric disorder has been received, the 
Board must now address the de novo issue of entitlement to 
service connection for this disability.  In this regard, the 
Board notes that service connection may be established for 
disability resulting from personal injury suffered or disease 
contracted in the line of duty in the active military, naval, 
or air service.  38 U.S.C.A. §§ 1131 (West 2002).  That an 
injury or disease occurred in service is not enough; there 
must be chronic disability resulting from that injury or 
disease.  If there is no showing of a resulting chronic 
condition during service, then a showing of continuity of 
symptomatology after service is required to support a finding 
of chronicity.  38 C.F.R. § 3.303(b) (2007).  Service 
connection may be granted for any injury or disease diagnosed 
after discharge, when all the evidence establishes that the 
disease or injury was incurred in service.  38 C.F.R. 
§ 3.303(d) (2007).

Additionally, service connection for certain diseases, such 
as psychosis, may be established on a presumptive basis by 
showing that they manifested themselves to a degree of 10 
percent or more within one year from the date of separation 
from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2007).

In the present case, the veteran contends that his 
psychiatric disorder began in service.  Specifically, in a 
statement received by the RO in January 2004, he asserted 
that after seeing three psychiatric doctors it was determined 
that he had a mental disorder and he was granted an honorable 
discharge.  

Service medical records are negative for complaints of, 
treatment for, or diagnosis of a psychiatric disorder.  The 
report of an April 1971 medical evaluation indicates that the 
veteran "lack[ed] the mental ability" to be a Marine.  He 
was honorably discharged later that same month.   

Post-service medical records reflect extensive treatment for, 
and evaluation of, a psychiatric condition variously 
diagnosed as schizophrenia (chronic and paranoid), a 
malingering schizoaffective disorder, a substance induced 
mood disorder, a personality disorder with antisocial and 
narcissistic traits, and polysubstance abuse and dependence 
since January 2002.  However, none of these records associate 
the veteran's currently-diagnosed psychiatric condition to 
his three months of active military service. 

For the veteran to prevail on his claim, the evidence must 
show either continuity of symptomatology since service or a 
medical opinion linking his currently-shown psychiatric 
disorder to service.  Neither has occurred in this case.  
Although the Board acknowledges the veteran's contention that 
his psychiatric disorder began in service, there is no 
evidence of record showing a diagnosis of a psychiatric 
disorder upon discharge from service.  As such, little 
probative value attaches to his contentions that his 
psychiatric disorder developed in service.  Additionally, 
there is no evidence showing a psychosis within one year of 
service (to trigger the application of the legal presumption 
of service connection for chronic disease).  In fact, the 
lengthy period without post-service treatment (e.g., until 
2002, more than thirty years after separation from service) 
weighs heavily against the claim.  Maxon v. Gober, 230 F.3d 
1330 (Fed. Cir. 2000).  While post-service medical records 
provide a diagnosis of a psychiatric disorder, they do not in 
anyway attribute the disorder to the veteran's period of 
service.  

Thus, the Board finds that the preponderance of the evidence 
is against the veteran's claim for service connection for a 
psychiatric disorder.  Service connection is not warranted, 
and the appeal is denied.  



ORDER

Entitlement to service connection for a psychiatric disorder 
is denied.  


____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs