Citation Nr: 1005809 Decision Date: 02/17/10 Archive Date: 03/02/10 DOCKET NO. 02-00 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for residuals of a head injury. 2. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied an application to reopen a claim of entitlement to service connection for residuals of a head injury, as well as entitlement to service connection for a psychiatric disorder. The Veteran appeared at a local RO hearing in May 2002 before a hearing officer. A transcript of the hearing testimony is associated with the claims file. The Veteran cancelled his scheduled Board hearing at the Board's Central Offices in Washington, DC. In a February 2007 decision, the Board denied the claims, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2008, the Court granted a joint motion to remand the matter. In compliance with the Court's Order, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, in November 2008 for additional development. The RO completed the additional development as directed, reopened the claim for service connection for residuals of a head injury, but denied both claims on the merits, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. A May 1982 RO decision determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for residuals of a head injury. In the absence of a timely appeal, the May 1982 decision is final. 2. The evidence submitted since the May 1982 decision, by itself, or when considered with the previous evidence of record, is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. The preponderance of the probative evidence indicates that an acquired mental disorder, to include paranoid schizophrenia, is not related to an in-service disease or injury. CONCLUSIONS OF LAW 1. The May 1982 decision is final. New and material evidence sufficient to reopen a claim for entitlement to service connection for residuals of a head injury has not been received. The claim is not reopened. 38 U.S.C.A. §§ 5103A(d)(2)(f), 5108, 7105 (West 2002 and Supp. 2009); 38 C.F.R. § 3.156(a) (2000); 38 C.F.R. § 3.159 (2009). 2. An acquired mental disorder, to include paranoid schizophrenia, was not incurred in or aggravated by active service, and a psychosis may not be presumed to have been so incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the 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, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2004 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes the February 2004 letter did not inform the Veteran of the reason his prior claim was denied, or how disability ratings and effective dates are assigned in the event service connection is granted. These content deficiencies must tested for prejudice-specifically taking into account the applicability of nonprejudicial error. See Shineski v. Sanders, ___ U.S. ___, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009). The Board notes further that the Veteran did not receive a complete VCAA notice prior to the initial decision on his claim, as the statute requires. This was not error in the Veteran's case, however, as the provisions of 38 U.S.C.A. § 5103(a) were enacted until after the rating decision at issue, thus making compliance with the timing requirements of 38 U.S.C.A. § 5103 impossible. See Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Since then, the content of the notices provided to the Veteran have sufficiently informed him of what is needed to prove his claim. The May 2006 supplemental statement of the case provided appropriate information and evidence necessary to reopen the claim for service connection, and adequately informed him of the specific basis for the prior denial of his claim. Second, the RO's failure to provide the Veteran notice of how disability ratings and effective dates are determined as part of specific VCAA Notice letter is not prejudicial in light of the decision reached below. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The Veteran's claims were also reviewed on a de novo basis on more than one occasion, as shown in the supplemental statements of the case, see, e.g., the May 2009 supplemental statement of the case, which cured any timing defect in the notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Finally, since the Veteran's appeal to the Court, he is represented by an attorney, who has demonstrated in the various written submissions that he and the Veteran are fully aware of what is required to proved the claims in issue. See generally Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005). As a result, the Board finds the Veteran was not deprived of a meaningful opportunity to participate in the adjudication of his claims. See Washington v. Nicholson, 21 Vet. App. 191 (2007). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). While the Veteran may not have received full notice prior to the initial decision, after notice was provided-as found above, he was afforded a meaningful opportunity to participate in the adjudication of the claims via the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication, and the Board may address the merits of the appeal. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his/her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service Connection Governing Law and Regulation Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Legal Background of Claim To Reopen VA received the Veteran's initial claim in September 1969, which was for bruises of the face and neck, and dizziness from a mugging. Service treatment records noted the Veteran's treatment in May 1968 for swelling of the lip after being hit in the face by a volleyball three days earlier. The examiner noted the Veteran's lip had begun to swell. Treatment was 20-minute hot soaks for three days. There were no subsequent entries, and the service treatment records are otherwise entirely negative for any entries related to complaints, findings, or treatment for, an injury due to a mugging or otherwise. The August 1969 Report Of Medical Examination For Release From Active Duty found the only abnormality to be tattoos. All other areas were assessed as normal. A November 1969 RO letter informed the Veteran that there was no evidence of treatment in service for a head injury and denied the claim. The letter instructed him to either provide evidence of treatment, or he could appeal the decision. The claims file contains nothing to indicate that the Veteran did not receive the November 1969 decision letter, or any record that the U.S. Postal Service returned it to VA as undeliverable. Neither is there any record of his having submitted a timely notice of disagreement with that decision. Thus, the November 1969 decision became final and binding on the Veteran. Between 1971 and 1976, the Veteran sought a nonservice- connected pension, and he continued to report having been injured in a fight. In April 1976, he included pain in the head and ear along with a claim of entitlement to pension benefits. A July 1976 rating decision granted entitlement to pension benefits based on the appellant's schizophrenia. He later applied to reopen his claim, and an August 1979 rating decision denied service connection for a head injury. He was notified of the decision in a September 1979 RO letter. There is no record of an appeal. The Veteran applied again to reopen his claim in January 1982. Between the initial November 1969 denial and the August 1979 denial, the evidence added to the record consisted primarily of the treatment records associated with the Veteran's acquired psychiatric disorder. These records, such as an April 1976 VA Discharge Summary, note the appellant's report that he was injured in a fight when he was hit on the head with a gun barrel, and he lost consciousness for a few hours. He claimed to have been treated at Naval Hospital, Jacksonville, Florida, where he received stitches for his injury. The associated medical records note the Veteran reported this history as the basis for his complaints of headaches. The April 1976 report noted examination revealed no clinical signs of a head injury, i.e., a memory deficit or other indications of organic brain syndrome. An August 1976 report notes the clinical findings indicated the Veteran's headaches were of a psychogenic origin. An October 1976 entry notes there was no organic cause for the claimed headaches. All neurological examinations were negative, and an electroencephalogram study was interpreted as within normal limits. Pursuant to the January 1982 application, the Veteran asked the RO to obtain records from the VA Medical Center, Jacksonville, Florida, where-he asserted, he received stitches for his head injury. He had previously reported he was treated at the Naval Hospital, Jacksonville, Florida. The VA Medical Center responded to the RO with a negative reply. A May 1982 RO letter informed the Veteran his application to reopen was denied and also informed him of his appeal rights. The claims file reflects no evidence that he did not receive the decision letter, or any record that the U.S. Postal Service returned the May 1982 letter as undeliverable. Neither is there any record of the Veteran having appealed the decision. In the absence of an appeal, the May 1982 decision became final and binding on the Veteran. The May 1982 decision is the last final decision on the issue. New and Material Evidence The Board notes, as set forth above, that the May 2009 supplemental statement of the case notes that the RO determined that new and material evidence to reopen the claim was received, reopened it and adjudicated and denied it on the merits. Nonetheless, the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the Board will determine whether new and material evidence has in fact been received and, if so, consider entitlement to service connection on the merits. Governing Legal Standard Once a decision becomes final, absent submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). "New" evidence means more than evidence that has not previously been included in the claims folder, and must be more than merely cumulative or redundant, in that it presents new information. 38 C.F.R. § 3.156 (2000); Colvin v. Derwinski, 1 Vet. App. 171 (1990). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996), wherein the Court held that the question of what constitutes new and material evidence requires referral only to the most recent final disallowance of a claim. In addition, the evidence, even if new, must be material. VA received the Veteran's current application to reopen his claim in October 1999. The regulation applicable to new and material evidence, 38 C.F.R. § 3.156(a), was amended, effective August 29, 2001. Thus, the legal standard for reopening a claim which was in existence prior to that date applies to his claim. See 66 Fed. Reg. 45,620 (2001). Under the prior standard, new evidence is material if not previously of record and it bears "directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a) (2000); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. See Evans, 9 Vet. App. at 283 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Court has further held that, in determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. Justus v. Principi, 3 Vet. App. 510 (1992). Analysis The evidence added to the record since the 1982 decision consists of the service personnel records and additional records related to the Veteran's acquired psychiatric disorder and his testimony at the RO hearing. At the hearing he noted he may have been treated at the Naval Hospital in Pensacola, Florida. He denied any recall of having been hit by a volleyball during his active service. He said he did not know if he received stitches in the lip and head. See Transcript, pp. 3 - 8. The Board notes-as set forth above, that all new evidence is presumed credible, which means it is not tested or weighed for truth or accuracy. New evidence, by definition, is evidence which is not redundant. In this light, while the Veteran had not previously testified at a hearing, his testimony is not in fact new, as it is a redundant reiteration of his assertions which were already of record and which were previously rejected. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). In light of these factors, the evidence added to the record since 1982-to include when combined with that added from 1976 forward, is neither new nor material. There simply is no new evidence that he sustained a head injury during his active service-be it due to a robbery or other wise. Thus, new and material evidence has not been received. 38 C.F.R. § 3.156(a) (2000). The benefit sought on appeal is denied. As the Veteran has not carried his initial burden of submitting new and material evidence, the benefit-of-the- doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Acquired Mental Disorder Applicable Legal Standard The requirements for service connection set forth earlier in this decision are hereby incorporated here by reference. In addition, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Analysis Service treatment records are entirely negative for any entries related to complaints, findings, or treatment for, a mental disorder or symptoms of a mental disorder. The August 1969 Report Of Medical Examination For Release From Active Duty notes that the Veteran was clinically evaluated as psychiatrically normal. The claims file documents the Veteran's repeated reports of having been struck on the head in 1969 during an attempted robbery, but the Board is constrained to find his pre-1976 assertions incredible. The Board specifically notes pre-1976 because, from 1976 forward, the probative medical evidence shows the Veteran to have been delusional and a poor historian. His report of the putative mugging in 1969 has progressed from having been "pistol whipped" to a June 2000 mental health intake entry that notes he reported having been pistol whipped or "shot in the head." An examiner who examined the Veteran in 1977 as part of the his application for benefits administered by the Social Security Administration noted that he did not believe a word the Veteran said. The examiner opined that either the appellant was delusional from his illness, or he was merely seeking to obtain benefits. Apart from the Veteran's assertions, there simply is no evidence that he sustained blunt force trauma to the head during his active service. Had he received stitches as he claims, it is reasonable to infer the examiner at the 1969 physical examination for separation would have noted them or the residual scars, especially since the Veteran's release from active service was within a matter of months after the claimed incident. The February 2005 VA examination report notes that the Veteran claimed that he was assaulted in July 1969 and was hit in the lip and head. He alleged that after the incident he began to make mistakes prepping aircraft, and he was removed from that duty. He was then sent to Norfolk, Virginia, where he was discharged early. He reportedly worked for the airlines until January 1973, and it was around that time that he started to think he was a machine. After July 1969 he felt satellites were sometimes watching him. Following the interview of the Veteran and a review of the claims file, the examiner diagnosed undifferentiated schizophrenia and adjustment disorder with depressed mood in Axis I. The examiner opined that most likely the Veteran's schizophrenia did not have its onset during his active service, and that the evidence of record suggested the earliest date of significant psychiatric disturbance was 1975. As a result, the examiner also opined it was more likely than not that the Veteran's psychosis did not manifest itself prior to August 1970. One of the bases of the Joint Motion for Remand was that the Veteran's service personnel records were not available during the previous review of his appeal. His attorney asserted the service personnel records may well contain documentation of a decline in the performance of his duty. Those records were obtained while the case was on remand. The records note a drop in the Veteran's behavior assessment from 3.8 on initial assignment in March 1964 to 3.4 in March 1969. The personnel records do not, however, support the Veteran's assertion that he was removed from his primary duty because of constant mistakes. Neither do they note any disciplinary problems. Indeed, despite the drop in the behavior assessment notwithstanding, he was still recommended for reenlistment. He was discharged early because he was within three months of his established date of separation. The RO also inquired of the Jacksonville, Florida, Sheriff's Department, which provided a negative reply as to any records associated with the Veteran for the period 1969. The Pensacola, Florida, Police Department also submitted a negative reply. The Veteran was afforded another examination while the case was on remand. The May 2009 examination report notes that the examiner conducted a comprehensive review of the claims file. The examiner reached the same conclusions as the examiner at the 2005 examination. In addition, he opined it was less likely than so that the Veteran's psychiatric illness was caused by the alleged assault in July 1969. The examiner noted the Veteran did not seek mental health treatment during that time frame, and he functioned well for the next three years. The examiner also noted the absence of corroborative evidence of the claimed assault. As noted above, the Board finds that the Veteran is not credible. In light of the above factors, the Board is constrained to find the preponderance of the probative evidence of record is against the Veteran's claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The Board acknowledges the Veteran's attorney's assertion that the examiner applied an incorrect standard at the examination. Specifically, he addressed whether the Veteran's psychiatric disorder had its onset during his active service, rather than addressing whether the disorder is related to the Veteran's active service. The Board agrees with the attorney that the latter is in fact the correct standard. Under other circumstances a remand for clarification might well be in order. In the instant case, however, a remand would serve no substantive purpose, and the Board finds no prejudice to the Veteran. There simply is not even a minimal factual context from which any examiner might opine that there is some linkage between the Veteran's current psychiatric disorder and his active service. The examiner's opinion that it was unlikely the Veteran's psychiatric illness was secondary to the alleged assault essentially applies the correct standard, as the claimed assault is the primary defining in-service event of record- as repeatedly asserted by the Veteran. The service treatment records are barren, as are the service personnel records of any pertinent evidence of such an assault. The claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER New and material evidence has not been submitted to reopen a claim for service connection for residuals of a head injury. The petition to reopen is denied. Entitlement to service connection for an acquired mental disorder, to include paranoid schizophrenia, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs