Citation Nr: 0813093 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 06-17 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as a schizophrenic reaction, paranoid type, with sociopathic personality. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from May 1966 to March 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board also notes that additional evidence has been received since the case was certified for appeal. That evidence includes outpatient mental health records. The veteran submitted a waiver of regional office consideration in October 2006. Accordingly, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. FINDINGS OF FACT 1. In an unappealed July 1997 decision, the RO denied an application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. The evidence added to the record since July 1997, when viewed by itself or in the context of the entire record, does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The July 1997 rating decision which denied the veteran's application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as a schizophrenic reaction, paranoid type, with sociopathic personality, is final. 38 U.S.C.A. § 7104 (West 2002). 2. The evidence received subsequent to the July 1997 rating decision is not new and material, and the requirements to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as a schizophrenic reaction, paranoid type, with sociopathic personality, have not been met. 38 U.S.C.A. §§ 5108, 5103(a), 5103A, 5107(b), 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. The veteran is claiming entitlement to service connection for an acquired psychiatric disorder. The Board observes that a rating decision denying service connection was issued in September 1968. At that time, it was determined that the veteran's nervous or mental disorder preexisted service, was congenital in nature and was not aggravated by service. The veteran did not appeal that decision and it became final. See 38 C.F.R. § 7105. He subsequently requested that his claim be reopened in February 1985, which was denied by the RO in April 1985. In June 1997, the veteran again requested that his psychiatric disorder claim be reopened, which was denied by the RO in July 1997. In December 2004, he once again requested that his nervous or mental disorder claim be reopened. The request was denied in an April 2005 rating decision which is the subject of the instant appeal. Based on the procedural history outlined above, the issue for consideration is whether new and material evidence has been received to reopen the claim. There has been a regulatory change with respect to new and material evidence which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.156(a)). Because the veteran filed his most recent claim to reopen in December 2004, after this date, the new version of the law is applicable in this case. Under the revised regulation, "new" evidence is defined as 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002)(eliminates the concept of a well-grounded claim). As previously noted, the veteran's psychiatric disorder was originally considered in September 1968. At that time, although the service medical records reflected complaints of schizophrenic reaction and paranoid type, the claim was denied on the basis that his psychiatric disorder pre-existed service, was congenital in nature, and was not aggravated by service. That decision became final. When his request to reopen was last considered, by the RO in July 1997, it was found that new and material evidence had not been received. In sum, the evidence of record at the time of the last final rating decision in July 1997, did not establish that any pre-exiting schizophrenic reaction disability was aggravated by active service. Evidence added to the record since the time of the last final RO denial in July 1997 includes a December 1997 VA examination, private outpatient treatment records dated between July 1997 to August 2003, a private inpatient treatment report from September 2003 through December 2003, and VA outpatient reports from 2004. The evidence detailed above was not previously before agency decision makers and is therefore new; however, it merely reflects diagnoses already established by the evidence of record at the time of the last final rating decision in July 1997 and is, therefore, essentially cumulative or redundant of evidence already associated with the claims file. Additionally, the evidence added to the record subsequent to the last final rating decision in July 1997 is not material. Indeed, such evidence does not relate to an unestablished fact necessary to substantiate the claim. The veteran's original claim had been denied because it was determined that his psychiatric disorder preexisted service, was congenital in nature and was not aggravated by service. Therefore, the recently submitted treatment reports showing present disability do not provide a basis for substantiating the claim. As the evidence received since the last final denial in July 1997 is not both new and material, the application to reopen the previously denied claim must fail. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the veteran in January 2004 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as he was informed about what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against reopening the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained VA treatment records and the veteran submitted private outpatient and in-patient treatment records. In addition, he was afforded a VA medical examination in December 2007. Further, a letter received by the RO in September 1997 indicated that health records at a Florida state run facility were unavailable due to Florida Department of State requirements to destroy medical records seven years past discharge or death. A specific VA medical opinion is not needed to consider whether the veteran has submitted new and material evidence but, rather, the Board has reviewed all the evidence submitted to the claims file since the last final denial. Therefore, a remand for another VA examination or an opinion is not warranted. See also 38 C.F.R. § 3.159(c)(4)(iii) (2007). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither he nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as a schizophrenic reaction, paranoid type, with sociopathic personality, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs