Citation Nr: 1321444 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 07-36 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). See 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from March 1974 to April 1974 and December 1974 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for depression with anxiety. In May 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in November 2007. While the Veteran did request a Travel Board hearing on his November 2007 VA Form 9, in a subsequent communication received in October 2010, he withdrew his request for a Board hearing. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). In December 2011, the Board remanded the Veteran's petition to reopen his previously denied claim for service connection for an acquired psychiatric disorder to the Appeals Management Center (AMC) for further evidentiary development, including obtaining the Veteran's personnel records and readjudicating the case, including consideration of 38 C.F.R. § 3.156(c). The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the records reflects that the AMC obtained the Veteran's personnel records and readjudicated the case in an August 2012 supplemental statement of the case. In the August 2012 supplemental statement of the case, the AMC specifically referenced 38 C.F.R. § 1.56(c). However, as the new evidence submitted was not deemed relevant, the AMC did not apply the provisions of 38 C.F.R. § 3.156(c). Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. To establish jurisdiction over this issue, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C.A. §§ 5108, 7105 (West 2002). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, new and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The RO denied the Veteran's petition to reopen his claim of entitlement to service connection for a mental condition in April 1979 on the basis that no new and material evidence establishing that the Veteran had a nervous condition that was incurred in or aggravated by service had been submitted; the Veteran was properly informed of the adverse decision and his appellate rights, and he did not appeal. 2. Evidence, including additional service department records, received since the April 1979 rating decision that denied the Veteran's petition to reopen his claim of entitlement to service connection for a nervous condition does not relate to unestablished facts necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has not been received for the claim of entitlement to service connection for an acquired psychiatric disorder; the claim is not reopened and the criteria for reconsideration are not met. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 3.156(c), 20.1100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it 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. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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. In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen service connection claims, the Veteran be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial(s). Prior to the initial adjudication of the Veteran's claim, a letter dated in August 2004 satisfied the duty to notify provisions set forth in Pelegrini II. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio at 187. Additionally, a March 2007 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the AMC sent the Veteran a letter in January 2012 that provided notice of the elements of new and material evidence and the reasons for the prior denial. Thus, the criteria of Kent are satisfied. See Kent, supra. The Board notes that the notice requirements under Dingess/Hartman and Kent were not sent prior to the RO's initial March 2007 adjudication of the Veteran's claim. However, the Board finds that this was not prejudicial to him. Following the additional notice, he was provided a minimum of 30 days to respond and the claims were readjudicated in a May 2007 statement of the case and an August 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, personnel records, VA treatment records, and an April 1983 VA neuropsychological examination report are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. In light of VA's efforts to obtain all available treatment records, the Board finds the duty to assist has been met. The Board notes that, in an attempt to reopen a previously denied claim for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii) (2012). The Veteran was not afforded an examination in association with his petition to reopen. As discussed below, the Board has concluded that new and material evidence has not been submitted on the claim. Accordingly, there is no duty to provide an examination and no error exists. Id. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran contends that his psychiatric disability is the result of active duty service. He filed his original claim of entitlement to service connection for a nervous condition in March 1978. A June 1978 rating decision denied the claim, finding essentially that there was no evidence that the Veteran had a nervous condition that was related to his military service. The Veteran did not appeal this decision. In February 1979, the Veteran submitted a petition to reopen his claim of entitlement to service connection for a nervous condition. An April 1979 rating decision declined to reopen the Veteran's claim, as he had not submitted any new and material evidence. The Veteran did not appeal this decision. Finally, in August 2004, the Veteran again filed a petition to reopen his claim of entitlement to service connection for an acquired psychiatric disorder. In March 2007, the RO denied the Veteran's petition on the basis that new and material evidence had not been submitted. Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. As noted above, 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. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett, supra. 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. See Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means 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. See 38 C.F.R. § 3.156(a) (2012). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "[T]he determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material." See Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court further explained in Shade that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element. The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). In addition to new and material evidence, the regulations provide that at any time after VA renders a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. See 38 C.F.R. § 3.156(c) (2012). Further, an award made based all or in part on these records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. See 38 C.F.R. § 3.156(c)(i)(3). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2012). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain diseases, including psychoses, become manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). As the previous denials of reopening and of service connection were premised on findings that there was no medical evidence of a nexus between the Veteran's military service and his psychiatric disorder, for evidence to be new and material in this matter, (i.e., relating to unestablished facts necessary to substantiate the claim, and raising a reasonable possibility of substantiating the claim), it would have to show that the Veteran has a psychiatric disability that was incurred in or aggravated by service or that the Veteran has had continuous symptoms of psychosis since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsequent to the April 1979 rating decision, the RO received or obtained a February 1983 neuropsychological examination report, updated VA and private treatment records, personnel records, and additional statements from the Veteran . The examination report and treatment records indicate that the Veteran has been diagnosed with various psychiatric and personality disorders, including paranoid schizophrenia, drug abuse, a personality disorder, and depressive disorder. Additionally, the personnel records show that the Veteran received drug counseling in service and underwent a mental status evaluation which showed no significant mental illness. Although this evidence is "new," having not been previously considered by the RO, it is not "material." The newly received evidence does not contain any diagnosis of a psychiatric disability in service, nor was a medical nexus provided relating the Veteran's current psychiatric disability to service. Further, the treatment records do not reflect continuity of psychotic symptoms from the time of service. Although the new evidence shows ongoing treatment for and diagnoses of psychiatric disorders, it is not material in that it does not link the Veteran's current psychiatric disability to service. Moreover, at the time of the previous denials, the RO reviewed evidence showing that the Veteran had psychiatric diagnoses and that he had received drug counseling in service. Therefore, the new evidence showing additional diagnoses and confirming the in-service drug counseling is merely redundant of evidence previously considered. As stated above, in order to reopen the previously denied claim for service connection for an acquired psychiatric disorder, the Veteran must submit evidence that shows that his current psychiatric disability was incurred in or aggravated by service. The evidence he has submitted fails to establish such a medical nexus. Accordingly, the Board finds that the evidence received since the April 1979 rating decision, while not previously considered, does not raise a reasonable possibility of substantiating the claim. Therefore, the evidence is not material. The appeal to reopen the Veteran's claim for service connection for an acquired psychiatric disorder under 38 C.F.R. § 3.156(a) is denied. To the extent that the Veteran and his representative argue that the claim should be reconsidered under 38 C.F.R. § 3.156(c) as VA has obtained and associated the Veteran's personnel records with the claims file since the April 1979 denial, the Board notes that these personnel records are irrelevant or redundant of the service treatment records considered at the time of the April 1979 denial. The only personnel records relating to the Veteran's mental state are records showing that he underwent drug counseling and a mental status evaluation showing no significant mental illness. This information is also found in the service treatment records which were of record at the time of the last denial and does not establish any in-service treatment or diagnosis of an acquired psychiatric disorder. As such, these personnel records, though recently obtained, are not relevant to the Veteran's claim. Accordingly, reconsideration of the Veteran's claim for service connection for an acquired psychiatric disorder under 38 C.F.R. § 3.156(c) is also not warranted. ORDER The application to reopen or reconsider the claim of entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs