Citation Nr: 1300633 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-24 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from September 1990 to September 1992. This case was remanded by the Board of Veterans' Appeals (Board) in September 2010 to the Department of Veterans Affairs (VA) Regional Office in Togus, Maine (RO) to obtain the Veteran's Social Security Administration (SSA) records and his service personnel records. The Veteran's SSA records and service personnel records were subsequently added to the claims files. Consequently, there has been substantial compliance with the September 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). The Veteran testified at travel board hearing before the undersigned Veterans Law Judge in August 2009, and a transcript of the hearing is of record. Although the "Decision" section of the July 2011 Supplemental Statement of the Case found that new and material evidence had been submitted to reopen the claim for paranoid schizophrenia, the "Reasons and Bases" section concluded that the evidence received was not sufficient to reopen the claim for service connection for paranoid schizophrenia. However, regardless of what the RO has done in cases such as this, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). The same statutory reopening requirements that apply to prior Board decisions also apply to prior final RO decisions. Suttmann v. Brown, 5 Vet. App. 127, 135 (1993). Therefore, the Board is required by statute to review whether new and material evidence has been submitted to reopen the claim. FINDINGS OF FACT 1. The original claim for service connection for paranoid schizophrenia was denied by rating decisions in March and September 2006; the Veteran was notified of the decisions later in March and September 2006, and he did not timely appeal. 2. A claim to reopen, which was received by VA in March 2007, was denied by rating decision dated in July 2007. The Veteran timely appealed. 3. The evidence received subsequent to the September 2006 denial does not relate to the unsubstantiated fact indicating that the Veteran has paranoid schizophrenia due to service and does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for paranoid schizophrenia. CONCLUSIONS OF LAW 1. The March and September 2006 RO decisions that denied service connection for paranoid schizophrenia are final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1104 (2012). 2. New and material evidence has not been received to reopen a claim for service connection for paranoid schizophrenia. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1104 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. To provide adequate notice with regard to an application to reopen a claim, VA must look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the Board finds that VA's duty to notify was satisfied by a letter sent to the Veteran in March 2007. The letter addressed all of the notice requirements and was sent prior to the initial unfavorable decision by the AOJ. The letter informed the Veteran that the claim was previously denied because the evidence did not show a psychiatric disability due to service. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. This duty requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA is not required to provide a medical examination in a new and material evidence case unless it is first determined that the claim is reopened. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claim including at his August 2009 hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks to reopen a claim for service connection for paranoid schizophrenia, as he contends that he started having psychiatric problems in service. However, the Veteran has not submitted new and material evidence to reopen the previously denied claim, and the appeal will therefore be denied. In general, unappealed rating decisions are final. See 38 U.S.C.A. § 7104. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "If new and material evidence is presented or secured with respect to a claim that has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also Kightly v. Brown, 6 Vet. App. 200 (1994). "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 unsubstantiated 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). There must be new and material evidence as to any aspect of the Veteran's claim that was lacking at the time of the last final denial in order to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). Consequently, in this case, there would need to be evidence that the Veteran currently has paranoid schizophrenia due to service. The issue of service connection for paranoid schizophrenia was originally denied by rating decisions in March and September 2006 because the evidence did not show paranoid schizophrenia due to service. The Veteran was notified of the denials later in March and September 2006, and he did not timely appeal. The Veteran attempted to reopen the claim in March 2007, and his application was denied by rating decision in July 2007, and he timely appealed. The evidence on file at the time of the September 2006 RO decision consisted of the Veteran's service treatment records, private treatment reports dated from March 1999 to November 2004, and VA treatment reports dated from December 1999 to November 2005. There were no psychiatric complaints on the Veteran's March 1990 enlistment medical history report, and the Veteran's psychiatric condition was noted to be normal on enlistment medical evaluation in March 1990. The Veteran complained on a May 1992 medical history report of depression or excessive worry; he noted cocaine abuse. A May 1992 Report of Mental Status Evaluation reveals that the Veteran was alert and oriented, his thought process and content were normal, his behavior was normal, and his mood was unremarkable. According to a Report of Medical Examination the day after the mental status evaluation, the Veteran's psychiatric condition was normal. According to March and April 1999 medical evaluation reports from The Alpine Clinic, the Veteran injured his back at work in December 1997 and had been referred for a psychological evaluation to see if there was any psychological sequela related to his complaints of chronic pain. It was noted that he appeared somewhat paranoid. The diagnoses were bipolar II disorder, schizoid personality disorder, fibromyalgia, and back injury. VA treatment reports dated from December 1999 to February 2004 reveal a December 1999 notation of no psychiatric illness until after his back injury. The Veteran reported in December 2001 that he had had emotional problems since age 12 and that he was initially diagnosed with a bipolar disorder and schizoid personality in 1994. The diagnosis in February 2003 was paranoid schizophrenia with obsessive-compulsive tendencies and superimposed depression. A psychiatric evaluation was conducted by W. K., M.D., in May 2002. The Veteran reported that he had had Attention Deficit Disorder (ADD) and anxiety his entire life. He was initially hospitalized for drug and alcohol problems when he was 12 years old. He reported that he used drugs and alcohol in service. He did not receive treatment again until 4-5 years prior to the evaluation. The diagnoses were rule out schizoaffective disorder vs. bipolar affective disorder, Type II; history of ADD; and severe history of polysubstance abuse and dependency. Riverview Psychiatric Center records for October and November 2004 reveal the diagnosis of schizoaffective disorder, bipolar type, with strong obsessive-compulsive qualities, rule out obsessive-compulsive disorder. According to a November 2004 VA treatment report, the Veteran's longest period of abstinence from drug and alcohol abuse was from age 14 to age 19. The evidence received by VA since September 2006 consists of copies of service reports dated in 1992, private treatment records dated from July 1998 to September 2000, VA treatment reports dated from October 1999 to July 2008, a January 2004 SSA decision, the transcript of the Veteran's August 2009 travel board hearing, and written statements by and on behalf of the Veteran. The service records from 1992 include a March 1992 Memorandum in which it is noted that the Veteran fulfilled the diagnostic criteria for alcohol and cannabis dependence and acknowledged abusing other illegal drugs in the prior six months. He expressed little motivation to receive treatment. According to an August 1992 Performance Evaluation, the Veteran's work performance was professional with a high degree of knowledge and sound judgment. Also included in this evidence are statements from fellow service personnel, which attest to the Veteran's professionalism in doing his job. It was noted by V. D. S. that the Veteran had a very aggressive way of communicating with other people but because of that he always got the job done. According to July 1998 treatment records from LaPlata Family Medicine, the Veteran appeared neurotic. VA treatment reports since October 1999 show treatment for back pain and psychiatric problems. A January 2004 SSA decision granted SSA disability benefits, effective August 2000, for a primary diagnosis of psychoactive substance dependence disorders, alcohol; and a secondary diagnosis of affective or mood disorders. It was noted that the Veteran reported in his Application for Supplemental Security Income that his disability began in August 2000. The Veteran testified at his August 2009 travel board hearing that he sought treatment in service for his psychiatric problems; and that even though it appeared that he was trying to get treatment for alcohol and drug abuse in service, he was also trying to get treatment for psychiatric problems. The Board has reviewed the evidence received into the record since the September 2006 RO denial and finds that new and material evidence has not been submitted sufficient to reopen the claim for service connection for paranoid schizophrenia. Although the evidence added to the claims file since September 2006 is "new" because it was not previously of record, it clearly does not contain any evidence which relates to "unestablished facts necessary to substantiate the claim." In other words, the additional evidence received since the September 2006 RO decision does not relate to the unestablished facts necessary to substantiate the claim by showing that the Veteran currently has paranoid schizophrenia secondary to service, so it does not raise a reasonable possibility of substantiating the claim. Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992) (observing that evidence of the claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). In fact, most of the new medical evidence does not relate to service, but rather involves current treatment. This evidence shows continued psychiatric problems but does not include a nexus opinion in favor of the claim. With respect to the service personnel records from 1992, these records show service problems with polysubstance abuse but do not include any complaints or treatment for a psychiatric disorder. Although the Veteran testified at his August 2009 hearing that he was seeking treatment in service for psychiatric problems, the Board would note that he was provided a mental status evaluation in May 1992, which did not find any psychiatric abnormality. The Board also notes that while there is some conflict in the evidence as to when the Veteran's chronic psychiatric problems began, there is no medical evidence that it began in service or was aggravated thereby. Although the Veteran has reported that he has had emotional and drug most of his life, he noted in his Application for Supplemental Security Income that his disability began in August 2000. Accordingly, the Board finds that the claim for service connection for paranoid schizophrenia is not reopened. ORDER As new and material evidence has not been received, service connection for paranoid schizophrenia is not reopened; the appeal is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs