Citation Nr: 1024004 Decision Date: 06/28/10 Archive Date: 07/08/10 DOCKET NO. 08-19 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant served on active duty for training from December 1977 to June 1978. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant was scheduled for a videoconference hearing before the Board in June 2010; he failed to report for the hearing. The Board notes that service connection was previously denied for a nervous condition in a July 1978 rating decision. The appellant did not appeal that decision and it became final. Thereafter, an August 1996 Board decision denied service connection for a psychiatric disorder; this decision is also final. In June 1999, the RO declined to reopen a claim for service connection for an acquired psychiatric disability. The appellant did not appeal that decision and it became final. The appellant initiated a new claim for service connection for a psychiatric disorder in September 2006. The RO declined to reopen a previously denied claim for service connection for schizophrenia in January 2007. However, given the appellant's various psychiatric diagnoses (as discussed below), the Board has recharacterized the issue presently on appeal as whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. An unappealed July 1978 rating decision, denied service connection for a nervous condition on the basis that such disability existed prior to service and was not aggravated therein. 2. An August 1996 Board decision denied service connection for a psychiatric disorder on the basis that such disability existed prior to service and was not aggravated therein. 3. An unappealed June 1999 rating decision declined to reopen the claim of service connection for a psychiatric disability. 4. Evidence received since the June 1999 decision pertaining to the claim of service connection for an acquired psychiatric disorder is either cumulative to, or redundant of, the evidence previously of record, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim seeking service connection for an acquired psychiatric disorder may not be reopened. U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). October 2006 and September 2009 letters provided the appellant notice of the evidence needed to support his claim, and advised him of his and VA's responsibilities in the development of the claim. He was also provided notice of the specific evidence needed to reopen the claim seeking service connection for a psychiatric disability (see Kent v. Nicholson, 20 Vet. App. 1 (2006)). (The Board recognizes that the October 2006 VCAA letter incorrectly informed the appellant that his claim had been previously denied in October 1978 (rather than October 1978, August 1996 and June 1999); however, this is not a critical error in the case at hand as the letter correctly informed the appellant of the specific evidence needed to reopen the claim as is required under Kent.) While complete VCAA notice was not given prior to the rating on appeal, the appellant had ample opportunity to respond to his notice letters and participate in the adjudicatory/appeal process. Thereafter, the claim was readjudicated in a March 2010 supplemental statement of the case. He is not prejudiced by any technical notice deficiency (including in timing) that may have occurred along the way. The appellant's pertinent, available private and VA treatment records have been secured. The duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). Thus, VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Law and Regulations Generally, when the RO denies a claim, and the appellant does not appeal the denial, such determination is final, and the claim may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105(c). In addition, a claim which has been denied by the Board may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7104. However, under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means 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). Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). A preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); see Green v. Derwinski, 1 Vet. App. 320, 322-23 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Active military service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (c), (d). ADT includes full-time duty in the Armed Forces performed National Guard members for training purposes under 32 U.S.C.A §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). Presumptive periods for service connection do not apply to ADT. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ADT, but the appellant, as an individual whose service consisted only of ADT, is not entitled to the application of the presumption of soundness or the presumption of aggravation. 38 U.S.C.A. §§ 101(24), 106, 1110. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. Factual Background and Analysis The appellant's STRs note that he denied any history of nervous trouble at the time of his September 1977 pre- enlistment examination. On examination, psychiatric clinical evaluation was normal. In February 1978, the appellant was hospitalized for bizarre, paranoid behavior, auditory hallucinations and an inability to communicate with other troops. He was confused, agitated and socially withdrawn. He reported having these symptoms a year earlier. The diagnosis was schizophrenia, paranoid type, of moderate severity. The Medical Board found the appellant unfit for further duty. An April 1978 Physical Evaluation Board Proceedings report concluded that the appellant's schizophrenia existed prior to service and was not aggravated therein, but rather was the result of natural progression. An unappealed July 1978 rating decision, denied service connection for a nervous condition on the basis that such disability existed prior to service and was not aggravated therein. Following service, private hospitalization reports dated from July 1978 to August 1978 note that the appellant was admitted for complaints of head pain and of spirits putting pressure on him. It was noted that, while in service, the appellant began to believe that someone was looking over his shoulder. A discharge summary shows that the appellant had become acutely decompensated and was temporarily committed for manifestations including agitation, auditory hallucinations, marked delusional ideations, and ideas of reference. A diagnosis of schizophrenia, paranoid type was made. Private hospitalization records dated in April 1979 show that in February 1979, the appellant was admitted to a county psychiatric hospital for setting fire to a chair. He admitted to hearing voices and showed delusional ideation. He was referred to the Day Treatment Center in April 1979. He had auditory hallucinations and was discharged and readmitted on a number of occasions. Private treatment records dated from August 1988 to October 1989 show that the appellant was nervous and was experiencing feelings of suspiciousness and paranoia. He was depressed. Additional private and VA treatment records dated since 1989 show that the appellant received treatment for substance abuse, schizophrenia and a major depressive disorder. An April 1993 VA examination report reflects that the appellant gave a long history of disability dating back to an uncertain age. It was reported that his first psychiatric hospitalization was in 1978. The appellant reported that he had been under a lot of pressure and did not know how to conduct himself properly. He was not able to be specific about any symptoms other than feeling depressed. He admitted to ongoing vague auditory hallucinations, depression, without current suicidal thoughts, vague paranoid ideation, and passive influence. A diagnosis of schizophrenia, paranoid type or schizo-affective disorder was made. Service connection for a psychiatric disorder was denied by an unappealed Board decision in August 1996. The Board found that that the appellant's psychiatric disability existed prior to service and was not aggravated beyond its natural progress therein. Evidence received after the August 1996 Board decision included VA and private treatment records dated from 1990 to 1998. These records show the appellant's ongoing treatment for various psychiatric disabilities, including schizophrenia, alcohol dependency, drug dependency, generalized anxiety disorder and major depressive disorder. An unappealed June 1999 rating decision declined to reopen the claim of service connection for psychiatric disability, noting that no evidence had been submitted to show that the psychiatric disability which existed prior to service and was aggravated beyond its natural progress therein. Evidence received since the June 1999 rating decision includes VA and private treatment records (including records from the Social Security Administration) dated from 2000 to 2009 which note the appellant's various psychiatric complaints and findings of schizophrenia, mood disorder, depression and substance abuse. While these medical records show a current diagnosis (of psychiatric disability) they do not tend to show that the appellant has a current psychiatric disability that was incurred in service, or existed prior to service and was aggravated beyond its natural progress therein. Consequently, the additional evidence received does not address both of the unestablished facts necessary to substantiate this claim, and is not material. Therefore, the medical evidence received since June 1999 does not raise a reasonable possibility of substantiating the claim, and cannot serve to reopen the claim. In addition, in statements received from 2006 to 2009, the appellant essentially maintains that his current psychiatric problems were incurred during his military service. No medical or other competent evidence was submitted to support these allegations. The appellant is a layperson, and lacks medical training and expertise to render a competent opinion on a matter, such as the relationship between a current disability and his military service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where, as here, resolution of the issue on appeal turns on a medical matter, unsupported lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Hickson v. West, 11 Vet. App. 374 (1998). Under these circumstances, the Board must conclude that new and material evidence has not been received, and that the claim of service connection for a psychiatric disorder may not be reopened. ORDER New and material evidence not having been submitted, the request to reopen a claim of service connection for a psychiatric disorder is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs