Citation Nr: 1311084	
Decision Date: 04/03/13    Archive Date: 04/19/13

DOCKET NO.  07-17 334A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Los Angeles, California


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, to include schizophrenia and posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife



ATTORNEY FOR THE BOARD

L. Barstow, Counsel

INTRODUCTION

The Veteran had active military service from May 1986 to May 1990.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

In March 2012, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

The case was remanded in November 2012 to obtain the Veteran's Social Security Administration (SSA) records, provide the Veteran the opportunity to provide additional information pertaining to his claimed stressors, and to obtain any additional treatment records identified by the Veteran.  Review of the record indicates substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board observes that the United States Court of Appeals for Veterans Claims (Court) held that, when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim.  The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, whatever it is, causes him.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Therefore, the Board has recharacterized the issue as set forth on the title page.

Furthermore, in consideration of Clemons, as discussed in detail below, the Veteran was denied service connection for paranoia, nightmares and cold sweats in 1996 and PTSD in 2002.  Although the current claim was only one for PTSD, the Board considers it a petition to reopen both previously denied claims.  

The November 2012 Board Remand referred the issues of service connection for hearing loss and a left shoulder disorder.  It does not appear that those issues have been adjudicated yet.  Therefore, the Board does not have jurisdiction over them and they are again referred to the RO for appropriate action.

Please note this appeal had been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  By unappealed July 1996 and June 2002 rating decisions, the RO denied service connection for paranoia, nightmares and cold sweats; and PTSD, respectively.  

2.  Evidence received after the July 1996 and June 2002 denials does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the underlying claims .


CONCLUSIONS OF LAW

1.  The RO's July 1996 and June 2002 denials of service connection for paranoia, nightmares and cold sweats; and PTSD, respectively, are final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012).  

2.  Evidence received since the final July 1996 and June 2002 rating decisions is not new and material.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The 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.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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).  The 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen.  With respect to such claims, 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.  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.  

The Veteran was notified in letters dated in December 2005 and November 2010 of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The November 2010 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The December 2005 correspondence also informed the Veteran of the basis of the prior final denial of his claim for service connection for PTSD in June 2002, while the November 2010 correspondence informed the Veteran of the basis of the prior final denial for schizophrenia.  The letters notified the Veteran that his claims were previously denied because there was no evidence showing that they were related to his military service and that evidence submitted must relate to that fact.  Although the November 2010 letter provided the incorrect date of the prior denial of service connection for schizophrenia, as it apprised him of the definition of new and material evidence as well as the basis of the denial, the Board concludes that VA has met its duty to notify the Veteran in this appeal.  

Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, SSA records and post-service medical records in furtherance of his claim.  The Board recognizes that the Veteran has not been afforded a VA examination in connection with his petition to reopen; the Board observes that an examination is not necessary if no new and material evidence has been received (as is the case in the instant appeal).  38 C.F.R. § 3.159(c)(4)(iii) (2012).

VA has no duty to inform or assist that was unmet.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder.  In reaching this conclusion, the Board acknowledges that the case was remanded, in part, to obtain treatment records identified by the Veteran at his March 2012 hearing.  Pursuant to the Board's November 2012 Remand, the Appeals Management Center (AMC) sent the Veteran an Authorization and Consent to Release Information form to obtain additional treatment records.  However, the Veteran failed to return that form, and the additional records were not obtained.  Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist is not a one-way street).

The Veteran was also provided with a hearing related to his present claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the VLJ explained the issue on appeal, but did not note the specific elements necessary to substantiate the new and material evidence claim or suggest the submission of any additional evidence.  This was not necessary, however, because the Veteran volunteered his information regarding his in-service injury, treatment history and current symptoms, thus fully describing the nature and severity of his psychiatric complaints.  He also indicated that he received private and VA treatment whose records VA previously obtained or tried to obtain.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

II.  Analysis

Service connection for paranoia, nightmares and cold sweats were denied in July 1996 because the evidence did not show that they were incurred or aggravated by the Veteran's military service.  In other words, evidence of record did not reflect a nexus between the Veteran's paranoia, nightmares and cold sweats and his active service.  Service connection for PTSD was denied in June 2002 because the evidence did not show a diagnosis of PTSD or a verified stressor.  In other words, evidence of record also did not reflect a nexus between the Veteran's PTSD and his military service.  After receiving notice of the July 1996 and June 2002 decisions, the Veteran did not initiate an appeal of the denial of those issues.  Later, in July 2005, however, he applied to have his claim reopened.

A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC).  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2012); 38 C.F.R. §§ 19.129, 19.192 (2012).  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).  

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  Barnett, supra.  Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted.  Id. at 1384.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is evidence not previously submitted to agency decision makers.  "Material" evidence is 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 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).  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).  

Here, relevant evidence of record at the time of the July 1996 rating decision consisted of the Veteran's STRs.  The relevant evidence at the time of the June 2002 rating decision consisted of the Veteran's STRs, personnel records and VA treatment records dated from September 2000 through May 2002.  His STRs show no diagnosis of, or treatment for, any psychiatric disorder.  His May 1990 discharge report of medical history examination shows that he denied having nervousness.  His VA treatment records show that he was treated for psychosis and polysubstance abuse.  Records dated in April 2002 indicate that the Veteran was diagnosed with psychosis, not otherwise specified (NOS); schizoaffective disorder; and substance induced psychotic disorder.  None of his records indicate that any of his psychiatric disorders were related to his military service.  

Accordingly, at the time of the denial of the claims for service connection for paranoia, nightmares and cold sweats in July 1996, and PTSD in June 2002, the claims folder contained no competent evidence of a current acquired psychiatric disorder related to the Veteran's military service.  Thus, the RO, in July 1996 and June 2002, denied service connection for paranoia, nightmares and cold sweats; and PTSD, respectively.  The Veteran did not appeal the RO's decisions, and those denials became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012).  

In reaching the conclusion that those decisions are final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011).  In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim.  Bond v. Shinseki, 659 F.3d 1362 (2012).  Here, no additional evidence pertinent to the issue of service connection for an acquired psychiatric disorder was received between the July 1996 and June 2002 rating decisions, and between the June 2002 rating decision and the 2005 claim.  The July 1996 and June 2002 rating decisions are thus final.  

The relevant evidence received since the denials consists of VA treatment records dated through May 2012, SSA records and the Veteran's contentions, including his testimony at the March 2012 hearing.  The Veteran has reported having three stressors consisting of a Howitzer exploding near him during field exercises on the demilitarized zone (DMZ) in Korea; witnessing someone kill themselves by playing Russian roulette; and being questioned in connection with crimes in service consisting of a murder and a rape and sodomy case.  See April 2008 stressor statement; March 2012 Hearing Transcript (T.) at 3, 4.  The RO obtained military unit and battalion histories pertaining to the Veteran's service in Korea, which did not corroborate that stressor.  The Veteran did not provide sufficient evidence for the RO to verify his other stressors.  

The Veteran's SSA records, which include VA records, reveal psychiatric treatment since October 1994 after he sustained a head injury, reportedly as occurring from being beaten by police as well as beaten by gang members.  These records show diagnoses of various psychiatric disorders such as psychosis (including substance induced), bipolar disorder, PTSD, schizophrenia, alcohol-induced psychotic disorder and depressive disorder.  None of them contain any opinion relating the any diagnosed psychiatric disorder to the Veteran's military service.  Furthermore, his SSA records do not show that the Veteran reported that the onset of an acquired psychiatric disorder occurred in service.  Rather, the records indicate that his symptoms did not begin until 1994.  See, e.g., June 1999 VA psychiatric questionnaire.  

Although some of his records indicate that he reported being discharged from service in 1994, indicating that his symptoms began within one year of discharge, as noted in the Introduction, the Veteran's DD 214 shows that he was discharged from active duty in 1990.  A VA record dated in October 1995 indicates that the Veteran reported having psychosis since October 1994.  He reported his stressor of being charged with rape and murder in service.  A March 2005 VA treatment record shows that the Veteran reported that his symptoms began shortly after service when he became more aggressive than usual, made bad decisions, and heard voices.  However, that record indicates that he reported being discharged in 1994 as opposed to his actual discharge in 1990.  

The evidence of record obtained since the June 2002 rating decision does not indicate that the Veteran has any verified stressors or that any acquired psychiatric, to include schizophrenia and PTSD, was present during service, a psychosis was manifest within a year of separation from service, or a currently diagnosed psychiatric disorder developed as a result of any incident during service.

Thus, this newly received evidence does not relate to unestablished facts necessary to reopen the previously denied claims of service connection for PTSD and paranoia, nightmares and cold sweats because it does not tend to show that the Veteran has any acquired psychiatric disorder, to include schizophrenia and PTSD, that is related to his military service.  Although the SSA records and additional VA records are new and also show a diagnosis of PTSD, which had not been shown at the time of the June 2002 rating decision, such evidence is not material because it fails to show that the onset of any acquired psychiatric disorder, to include schizophrenia and PTSD, was present during service, a psychosis was manifest within a year of separation from service, or a currently diagnosed psychiatric disorder developed as a result of any incident during service.  

Furthermore, the evidence fails to show that the Veteran has a verified stressor.  In finding that the Veteran does not have a verified stressor, the Board is cognizant of the amendment to 38 C.F.R. § 3.304 concerning stressors based on a veteran's "fear of hostile military or terrorist activity."  Specifically, the amendment provides that, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service.  Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3) ); 75 Fed. Reg. 41 ,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010).  For purposes of this section, "fear of hostile military or terrorist activity" means that "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, . . . , and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror."  75 Fed. Reg. at 39,852.

Although the Veteran reported fear following the Howitzer exploded, he did not report having fear of hostile military or terrorist activity.  Rather, his contentions indicate that he was afraid that another Howitzer would accidentally explode.  As such, the amendment does not apply to this stressor.  The Veteran did not provide sufficient information for the RO to verify his other stressors, although he was asked for such information in a January 2013 letter.  Therefore, the Veteran does not have any verified stressors.

No medical professional has provided any opinion showing that the Veteran has an acquired psychiatric disorder, to include schizophrenia and PTSD, that was present during service, a psychosis was manifest within a year of separation from service, or a currently diagnosed psychiatric disorder developed as a result of any incident in service.  In reaching this determination, the Board is cognizant of the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010).  In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a claimant's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a claimant's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  Id.  See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).  

Here, the Veteran's statements have not indicated ongoing symptoms since service.  Although the Veteran has indicated fear in service after the Howitzer explosion, his contentions have not been relevant as to the issue of a nexus.  As noted above, the Veteran's SSA records indicate that he reported his symptoms began in 1994, four years after he was discharged from service.  A June 1999 VA psychiatric questionnaire shows that the Veteran reported delusions beginning in 1994, while a SSA psychiatric evaluation also dated in June 1999 indicates that the Veteran's symptoms began in 1994.  Other records similarly show the Veteran reporting that his history of mental illness began in 1994.  See, e.g., April 2002 VA treatment record.  Even when taking into account the Veteran's statements throughout this appeal, including his March 2012 hearing testimony, the evidence still fails to show a nexus between an acquired psychiatric disorder, to include schizophrenia and PTSD, such that the claim should be reopened.  Accordingly, and based on this evidentiary posture, the Board must deny the Veteran's application to reopen this previously denied claim. 

ORDER

New and material evidence sufficient to reopen the previously denied claim of service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD, having not been received, the application to reopen this issue is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs