Citation Nr: 1302782 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-29 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for schizophrenia. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from April 1977 to December 1980. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The record shows that the Veteran submitted four VA Form 9's. In the Form 9 dated in August 2009, he indicated that he did not want a Board hearing. It is unclear from the two Form 9's dated in September 2009 whether he wanted a Board hearing since marks had been placed in boxes indicating that a hearing was desired and that a hearing was not desired. However in the Form 9 dated in November 2009, the Veteran indicated that he did not want a Board hearing. Therefore, the Board has concluded that the Veteran does not desire a Board hearing. FINDINGS OF FACT 1. A claim to reopen a claim for service connection for schizophrenia was denied in an unappealed rating decision issued in November 2006. 2. The subsequently received evidence is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for schizophrenia. 3. Service connection for diabetes was denied in an unappealed rating decision issued in November 2006. 4. The subsequently received evidence is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for diabetes. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for schizophrenia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence has not been received to reopen the claim for service connection for diabetes. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. 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. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in June 2008, prior to the rating decision on appeal. The record also reflects that the Veteran's service treatment records, Social Security Administration records and post-service treatment records are of record. Neither the Veteran nor his representative has identified any additional existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Although no VA examination was provided and no VA medical opinion was obtained in response to either claim to reopen, VA is not obliged to provide an examination or obtain an opinion in response to a claim to reopen if new and material evidence has not been received. See 38 C.F.R. § 3.159(c) (4). Therefore, the Board is also satisfied that VA has satisfied its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims to reopen. Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase, "raises a reasonable possibility of substantiating the claim," as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Schizophrenia In November 2006, the RO found that no new and material evidence had been received to reopen a claim for service connection for schizophrenia. The Veteran was notified of the decision and his appellate rights but did not file a notice of disagreement with the decision. The evidence of record in November 2006 included the Veteran's service treatment records, post-service private and VA records, and statements of the Veteran and his sisters indicating that the Veteran had mental problems in service. The RO denied reopening of the claim because there continued to be no medical evidence suggesting that schizophrenia was present in service or manifested within one year of the Veteran's discharge from service. Evidence added to the record since the November 2006 rating decision consists of the Veteran's statements, VA outpatient treatment records dated from 2006 and records from the Social Security Administration. The VA records show continuing treatment for schizophrenia. The records from the Social Security Administration show that the Veteran was granted benefits in 1991 for schizophrenia. The records contain psychiatric examination reports and treatment records beginning in 1991. The VA records and SSA records are cumulative in nature in that they continue to show the presence of schizophrenia many years following the Veteran's discharge from service. They do not suggest that the disorder was present in service or manifested within one year after the Veteran's discharge from service. Moreover, they do not otherwise related the disorder to the Veteran's active service. Therefore, they are not new and material. The Veteran's statements are similar to those submitted on prior occasions. They are cumulative or redundant of his earlier statements. Therefore, they are not new. Accordingly, reopening of the claim is not in order. Diabetes Mellitus In November 2006, the RO denied service connection for diabetes mellitus. The Veteran was notified of the decision and his appellate rights but did not file a notice of disagreement with the decision. The evidence considered at that time consisted of the Veteran's service treatment records, VA treatment records, and private treatment records. The claim was denied by the RO because there was no evidence suggesting that diabetes was present in service or manifested within one year of the Veteran's discharge from service. Evidence added to the record since the November 2006 denial consists of the Veteran's statements, VA outpatient treatment records dated from 2006 and records from the Social Security Administration. The VA treatment records reflect continuing treatment for insulin dependent diabetes. These records are cumulative in nature since they continue to show the presence of diabetes many years following the Veteran's discharge from service. They do not suggest that the disorder was present within one year after the Veteran's discharge from service or that the disorder is etiologically related to service. Therefore, they are not new and material. The Social Security records do not relate to diabetes and are thus not material to this claim. In his statements, the Veteran has reported that he has been receiving treatment for diabetes since 2003. His statements do not relate to an unestablished fact necessary to substantiate the claim. Therefore, they are not material. Accordingly, reopening of the claim for service connection for diabetes is not in order. ORDER The Board having determined that new and material evidence has not been received, reopening of the claim for service connection for schizophrenia is denied. The Board having determined that new and material evidence has not been received, reopening of the claim for service connection for diabetes is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs