Citation Nr: 1317641 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 13-05 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for an acquired psychiatric disability, on a direct or secondary basis. REPRESENTATION Appellant represented by: John Worman, Attorney at Law ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1953 to January 1957 and from March 1957 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran initially claimed entitlement to service connection for depression; however, the United States Court of Appeals for Veterans Claims (Court) has held that such claims amount to a claim of entitlement to service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Therefore, in accordance with Clemons, the Board has recharacterized the issue on appeal. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Please note this appeal has 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. In a December 2006 rating decision the Veteran was denied entitlement to service connection for depression, to include as secondary to service-connected prostate cancer. 2. Evidence received since the December 2006 rating decision is not new and material and the Veteran's claim of entitlement to service connection for acquired psychiatric disability, on a direct or secondary basis, cannot be reopened. CONCLUSIONS OF LAW 1. The December 2006 rating decision that denied entitlement to service connection for depression, to include as secondary to service-connected prostate cancer, is final. 38 U.S.C.A. § 7105(c) (West 2002). 38 C.F.R. § 3.156 (2012). 2. New and material evidence has not been received since the December 2006 rating decision, and the Veteran's claim of entitlement to service connection for acquired psychiatric disability, on a direct or secondary basis, cannot be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Generally, a claim that 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). The 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. 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). The Court recently 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran originally filed a claim of entitlement to service connection for depression, to include as secondary to service-connected prostate cancer in September 2006, which was denied in a December 2006 rating decision on the basis that there was no evidence that his diagnosed depression was related to his service-connected prostate cancer; or, that it was related to some event or injury during active service. He filed a claim to reopen in May 2012, asserting that his depression was secondary to all of his service-connected disabilities, not simply his prostate cancer. Evidence of record at the time of the December 2006 rating decision included the Veteran's service treatment records (STRs) which were silent for any complaints or treatment related to any psychiatric disability, including depression. Also of record were pertinent post treatment records that included VA outpatient treatment records that showed the Veteran received intermittent mental health treatment. Treatment records from October 2006 showed that the Veteran complained of depression, which he attributed to watching news coverage of the Iraq war. These records also noted that the Veteran had a history of pathological gambling. Also of record at the time of the December 2006 rating decision were the Veteran's treatment records for his prostate cancer. These records provided no indication that his acquired psychiatric disability was a result of his prostate cancer, or his treatment for such. Evidence received subsequent to the December 2006 rating decision contains duplicate records of the Veteran's prostate cancer treatment and additional VA treatment records that show the Veteran has continued to seek intermittent VA outpatient mental health treatment for his acquired psychiatric disability. However, these records provide no indication that his acquired psychiatric disability is related to his active service or to his various service-connected disabilities. Also received subsequent to the December 2006 rating decision is a January 2013 VA examination report, which notes that the Veteran reported a long history of compulsive gambling and that he would get depressed after losing a lot of money gambling. After examination and interview with the Veteran, the January 2013 examiner opined that the Veteran's acquired psychiatric disability, to include depression, was secondary to his gambling disorder, and it was therefore less likely than not that the his acquired psychiatric disability was proximately due to or the result of a service-connected disability. The Board is unable to view any of the newly received evidence as new and material. The additional outpatient treatment records simply document that the Veteran has continued to seek some care for his acquired psychiatric disability and do not include any competent suggestion that his acquired psychiatric disability was caused by his active service, or by a service-connected disability. Additionally, the January 2013 VA examination, while new, is not material, as it clearly states that the Veteran's acquired psychiatric disability is a product of his compulsive gambling problem, and not proximately due to or the result of a service-connected disability. As such, even considering the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010) to the effect that the VA regulation as to reopening a claim "must be read as creating a low threshold," the claim is not reopened. 38 C.F.R. § 3.156(a). Further, it is important for the Veteran to understand that even if the Board were reopen the claim, the most recent VA examination would clearly provide highly probative evidence against the Veteran's central contention, outweighing his own contention on this issue. In any event, overall, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include as due to service-connected disabilities. The new evidence does not materially show that the Veteran's acquired psychiatric disability is related to his active service or to any of his service-connected disabilities. For these reasons, the Board concludes that the Veteran has not presented new and material evidence to reopen his claim. Accordingly, the appeal is denied. See 38 U.S.C.A. § 5108. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Court has held that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. Kent at 9-10. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2012 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran how disability ratings and effective dates were established. Additionally, the May 2012 letter fulfilled the requirements of Kent. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, pertinent postservice treatment records, and the Veteran was afforded an appropriate VA examination in January 2013. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, on a direct or secondary basis. The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs