Citation Nr: 1042299 Decision Date: 11/10/10 Archive Date: 11/18/10 DOCKET NO. 07-17 428A ) 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 the claim of entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty for training in the United States Coast Guard from April to September 1967, and was in the Coast Guard reserves from October 1967 and August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The Veteran was scheduled to appear at a Board hearing in July 2010; however, he submitted a statement in July 2010 indicating his intent to withdraw his request for a hearing. Along with the withdrawal of his request for a hearing, the Veteran submitted additional evidence and a statement in July 2010. The record does not show that HE submitted a waiver of initial RO consideration for this evidence. Nevertheless, the Board finds that the instant claim need not be remanded to the RO for consideration of the newly- submitted evidence. The newly submitted evidence consists of copies medical records previously of record and statements from the Veteran that are consistent with previous statements of record. Therefore, the Board concludes that such records are essentially duplicative of those reviewed by the RO at the last adjudication of the claim. See 38 C.F.R. § 20.1304(c) (2010). Thus, there is no prejudice in considering the appeal at the present time. FINDINGS OF FACT 1. In an unappealed June 2005 decision, the Board denied entitlement to service connection for a psychiatric disorder. 2. The evidence associated with the claims files subsequent to the June 2005 decision does not relate to an unestablished fact necessary to substantiate the claim; is cumulative or redundant of evidence already of record; or does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all 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 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). Where complete notice is not accomplished in a timely manner, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield, 444 F.3d at 1328 see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). 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). Here, a VCAA letter was sent to the appellant in March 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. This letter also complied with Kent notice. In a separate March 2006 letter, the appellant was informed as to how VA establishes disability ratings and effective dates. All such notice preceded the initial adverse determination presently on appeal. Accordingly, no further development is required with respect to the duty to notify as to these issues. The Board also notes that the appellant's service treatment records and pertinent private medical records have been obtained to the extent possible. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. The Board acknowledges that the appellant has not been afforded a VA examination in response to his claim to reopen; however, VA has no duty to provide an examination in previously denied claims absent the submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(C)(iii). In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non- prejudicial to the appellant. Accordingly, no further development is required to comply with the VCAA. Legal Criteria In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100 (2010). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Analysis The appellant was initially denied service connection for a nervous disorder in January 1993. After a series of Board remands, the denial of service connection for a psychiatric disorder was eventually confirmed in a June 2005 Board decision. The appellant is seeking to reopen his claim for service connection for an acquired psychiatric disorder. The pertinent evidence of record at the time of the June 2005 Board decision consisted of the appellant's service treatment records from his time on active duty for training and reserve duty, records from the Pennsylvania Hospital from May 1973, records from the Haverford General Hospital also from May 1973, December 1992 and October 1995 statements from Dr. G., a July 1993 statement from Dr. H., a medical report from Dr. F. dated in April 1991, counseling records from 1989 through 1991, medical record from Dr. K. from 1973 through October 1996, deck logs from the U.S.C.G. Courier from July 1967, the appellant's Decision Review Officer hearing testimony, and various statements from the appellant. The Board denied the appellant's claim, finding that even if the Veteran's panic attacks did begin in February 1973, as he alleged, the claimed onset occurred during a period for inactive duty for training and not active duty. The evidence did not demonstrate that the appellant developed a psychiatric disorder due to an injury suffered while on inactive duty for training. Thus, his claimed based upon this theory was denied as a matter of law. In addition, the Board found no evidence of a psychiatric disorder during active duty service, or post-service evidence providing a link between any currently diagnosed psychiatric disorder and the appellant's active duty for training. Since the June 2005 Board decision, the following additional evidence was added to the record: duplicative copies of medical records from the Haverford Hospital and Dr. K., a duplicative record from the Haverford Hospital indicating no available records from February 1973, a May 2005 statement from Dr. M., a report from the National Personnel Record Center from January 2007 indicating that there were no further separation records for the appellant, and various statements from the appellant. The newly submitted statement from Dr. M. reveals that she first evaluated the appellant in 2007, and reports more than a 30-year history of depression and anxiety. She indicated that the appellant first suffered from a panic attack while working in a small patrol boat while on reserve duty for the Coast Guard. Although this evidence is new, in that it has not been submitted previously to agency adjudicators, it is cumulative or redundant of the evidence at the time of the prior decision which showed that the appellant's acquired psychiatric disorder first manifested during a period of inactive duty for training in February 1973. It does not establish that the appellant developed a psychiatric disorder due to an injury suffered while in inactive duty training, or provide a link between the Veteran's current psychiatric disorder and active duty service. Regarding the medical records, the Board notes that copies of these records were previously submitted prior to the June 2005 Board decision. Thus, they are cumulative and redundant of evidence already considered at the time of the prior denial, and are not new and material. In sum, none of the newly submitted evidence shows that the appellant's psychiatric disorder originated during active duty service, or provides a link between any currently diagnosed psychiatric disorder and the appellant's active duty for training. Moreover, none of the newly submitted evidence substantiates the Veteran's contention that his panic attacks first manifested during a period of active duty in February 1973. The Board has also considered the lay assertions of the Veteran, as well those advanced by his representative, on his behalf, in various written documents of record. In these statements, the Veteran has emphatically argued that his psychiatric disability first manifested at a time when he was serving on mandatory duty with the Coast Guard, and thus should constitute active duty service. However, as these statements are essentially duplicative of those raised or implied in his earlier claim, they are likewise not new and material. In conclusion, the evidence submitted by the Veteran since the June 2005 Board decision is cumulative of evidence already considered in the prior final denial, does not relate to an unestablished fact necessary to substantiate the claim, or is not sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, it is not new and material and reopening of the claim is not in order. ORDER New and material evidence not having been received, reopening of the claim of entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs