Citation Nr: 1320415 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 13-03 188 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Whether new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder, claimed as a nervous disorder, has been received. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to December 1958. A claim for service connection for an acquired psychiatric disorder was previously denied by the Board in May 1986 and June 1989. The Board denied petitions to reopen the claim in June 1992 and August 2005. Although notified of the denials, the Veteran did not appeal. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision in which the RO denied the petition to reopen a claim for service connection for a nervous disorder. In July 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2013. In March 2013, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. During the hearing, the Veteran requested, and the undersigned granted, a 60-day abeyance period for submission of additional evidence in support of the claim. To date, no additional evidence has been received. In connection with the hearing, the undersigned advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (Wes 2002) and 38 C.F.R. § 20.900(c) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Following multiple unsuccessful attempts to reopen a claim originally filed in 1982, most recently, in an August 2005 decision, the Board determined that the Veteran had not submitted new and material evidence to reopen her claim of service connection for a chronic, acquired neuropsychiatric disability. 3. No evidence associated with the claims file since the August 2005 Board decision, when considered by itself or in connection with evidence previously assembled, is new but rather is cumulative of that already considered, does not relate to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder, or raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The Board's August 2005 decision is final as to the claim for service connection for a psychiatric disability. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. 38 U.S.C.A. § 20.1100 (2012). 2. As evidence received since the Board's August 2005 denial is not new and material, the criteria for reopening the claim for service connection for an acquired psychiatric disorder are not met. 38 U.S.C.A. § § 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen, a veteran must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an August 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for a nervous disorder, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The notice advised the Veteran and her representative that the claim had been previously denied with the reason for the denial and that new and material evidence was necessary to reopen the claim. The October 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the August 2009 letter-which meets the content of notice requirements described in Dingess/Hartman, Pelegrini, and Kent -also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal that were not identified, obtained, and considered in the previous Board decisions. Pertinent medical evidence associated with the claims file and considered in previous appeals consists of service, VA, Social Security Administration, and private examination and treatment records, and a VA examination reports in May 1985 and October 1995. Also of record and considered in connection with previous appeals are the transcripts of the Veteran's RO hearing in August 1996 and Board hearings in June 1984, October 1984, June 1989, and, pertinent to the current appeal, in April 2013, along with various written statements provided by the Veteran, relatives, and friends and by her representative on her behalf. The Board finds that no additional RO action to further develop the record in connection with the request to reopen the claim for service connection for an acquired psychiatric disorder is warranted. Specifically as regards the April 2013 hearing, the Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), it was held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties: (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned VLJ noted that basis of the prior determinations and noted the elements of the claim that were lacking to substantiate the claim for service connection. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim including any records of treatment for psychiatric symptoms after service and any medical opinions on the relationship of the current disorder to events in service. Neither the Veteran nor her representative asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the RO/Board hearing. As such, the Board finds that, consistent with Bryant, there has been compliance with the duties set forth in 38 C.F.R. 3.103(c)(2), and the hearing is legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran served as a U.S. Air Force supply specialist. She contends that an acquired psychiatric disorder, variously claimed or diagnosed as a nervous disorder, general anxiety disorder, and major affective disorder, first manifested in service as a result of acute anxiety due to gender discrimination. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The RO received the Veteran's original claim for service connection for a nervous disorder in February 1982. The RO obtained the Veteran's service treatment records that showed multiple sick call visits to a base clinic and the results of a psychiatric examination and discharge examination. A psychiatrist concluded that there was no indication of a psychotic or psychoneurotic problem and that the Veteran was a poorly motivated, passive-dependent person who was reacting to dissatisfaction in her life situation with somatic complaints. Service personnel records showed that the Veteran sought and received an administrative, not medical, discharge. In May 1982, the RO denied service connection because the service records failed to show the onset or diagnosis of a chronic psychiatric disorder in service. In May 1985, the Board remanded the appeal in part for the RO to seek records of private medical care identified by the Veteran including from physicians in 1960 and in the early 1980s and to obtain a VA examination which was performed in May 1985. In May 1986, the Board denied service connection for an acquired psychiatric disorder. After additional evidence of private treatment was submitted, in June 1989, the Board considered the new evidence but again denied the claim on the merits. In June 1992 and again in August 2005, the Board considered the Veteran's petition to reopen the claims but denied the petitions because new and material evidence had not been received. In August 2005, the Board considered records of examination and adjudication of disability benefits by the Social Security Administration, VA outpatient treatment records, the report of an October 1995 VA examination, testimony at a hearing before the RO in October 1996, and lay statements from the Veteran and her sister. The Board concluded that all the evidence received since June 1992 was cumulative and redundant and it not meet the test for new evidence as defined in 38 C.F.R. § 3.156. Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Therefore, the August 2005 Board decision is final as to the evidence then of record. Id. The RO received the Veteran's current petition to reopen a claim for service connection for a nervous disorder in February 2009. The Veteran contended that this was a new claim. A change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service- connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.13, 4.125 (2008); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In this case, the Veteran's current claim for a nervous disorder is for the same symptoms and diagnoses and arises from the same facts and circumstances in service as were previously considered. Since the current diagnoses and claim are based on the same factual basis as the time the case was last decided on the merits, new and material evidence is necessary to reopen the claim. Id. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Pertinent evidence added to the claims file since August 2005 includes: a duplicate copy of an April 1984 letter from a private psychiatrist; an August 1996 note on a prescription form from a private physician; records of VA outpatient mental health treatment in May 2000, August 1996, September 1996, and from December 2012 to March 2012; a duplicate copy of an October 2002 statement; a November 2011 letter to her Congressman; duplicate copies of service personnel, medical treatment and examination reports; and the transcript of the Veteran's April 2013 testimony at a Board hearing. The Board initially finds that none of the medical evidence is new and material for purposes of reopening the claim. The duplicate evidence noted above clearly is not new, as identical documents were of record and considered in previous decisions. The remaining evidence is new but is entirely cumulative of lay and medical evidence that was previously considered. The VA and private medical evidence shows that the Veteran is under treatment for anxiety disorder. Examiners noted the Veteran's description of her experiences in service but did not note that her current disorder first manifested in service or was caused or aggravated by the events in service, the reason for the previous denials of service connection. During the Board hearing, the Veteran consistently described the gender discrimination, harassment by supervisors, and neuropsychiatric symptoms that she experienced in service reiterated information previously considered. The Veteran reported that after service she stayed with a relative and was not aware that she could seek treatment. She identified the physician who first provided post-service treatment in 1960 but records of that physician's care were already in the file and considered in previous appeals. In response to questions from the VLJ, the Veteran acknowledged that she did not discuss her service experiences with the physician who provided care immediately after service. Statements by the Veteran (as well as those by her representatives on her behalf) to the effect that her claimed psychiatric disorder is related to service are not new, as the Board notes that such assertions were before the Board at the time of the August 2005 decision. In any event, however, the Board emphasizes that laypersons without appropriate medical training and expertise are not competent to render a probative (persuasive) opinion on a medical matter-to include the matter of a medical etiology of a psychiatric disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layman is generally not capable of opining on matters requiring medical knowledge). Therefore, where, as here, resolution of the 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); Moray v. Brown, 5 Vet. App. 211, 214 (1993). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for an acquired psychiatric disorder claimed as a nervous disorder are not met, and the Board's 2005 denial of the request to reopen remains final. See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). As the Veteran has not fulfilled her threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received, the request to reopen the claim for service connection for an acquired psychiatric disorder, claimed as a nervous disorder, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs