Citation Nr: 1322751 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-17 813 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from November 1971 to November 1974 and from June 1975 to February 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the North Little Rock, Arkansas, Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for PTSD. In February 2011, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. Generally, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, a veteran filed for service connection for PTSD only, but the Court indicated that his claimed condition should be expanded to an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) so as to contemplate the veteran's psychiatric symptoms, not just his diagnoses. In this case, this was done, as the December 2008 rating decision, which is on appeal here, considered both PTSD and an acquired psychiatric disability, other than PTSD. However, the Veteran only appealed the denial of the PTSD portion of the rating decision. It is noted that the Veteran subsequently filed a separate claim seeking service connection for major depressive disorder. In January 2012, the Veteran's representative suggested that his claim should be recaptioned as seeking to reopen a claim for service connection for an acquired psychiatric disability, to include PTSD, but as discussed, the Veteran's claim has very clearly be separately adjudicated on multiple occasions as one for PTSD and one for an acquired psychiatric disability, other than PTSD. The Board disagrees, as it does not believe that Clemons is applicable in this case. First, this case involves previously final decisions, which Clemons specifically noted it did not. See 23 Vet. App. at 8. Moreover, the adjudication of the Veteran's psychiatric issues has clearly been separated into PTSD and all other acquired psychiatric disabilities; and the Veteran is clearly aware of the distinction between the two issues, as he has submitted separate claims seeking service connection for depression in July 2007 and September 2009, while perfecting the appeal of his PTSD claim. Additionally, the Veteran's claims for an acquired psychiatric disability, other than PTSD, were adjudicated on a parallel track with the adjudication of his PTSD claim, but the focus of this appeal, including the Veteran's testimony at his Board hearing, has always been on the specific issue of PTSD. If the Veteran desires to file to reopen a claim for service connection for an acquired psychiatric disability, other than PTSD, he should file it with the RO and provide new and material evidence. This adjudication will focus exclusively on whether new and material evidence has been presented to reopen the Veteran's previously denied claim of entitlement to service connection for PTSD. With regard to this issue, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. In January 2005, the Board denied service connection for PTSD. The Veteran was provided with a copy of the Board decision. The United States Court of Appeals for Veterans Claims (Court) subsequently affirmed the Board's decision. 2. The documentation submitted since the January 2005 Board decision denying service connection for PTSD is neither new, nor material, and it fails to raise a reasonable possibility of substantiating the Veteran's claim; moreover, even were the evidence used to reopen the claim, it would not trigger VA's duty to assist. CONCLUSION OF LAW The January 2005 Board decision denying service connection for PTSD is final; new and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for PTSD has not been presented and the claim is not reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 20.1100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Application to Reopen A final Board decision is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error or unless new and material evidence is presented. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 20.1100. The provisions of 38 C.F.R. § 3.156 direct, in pertinent part, that: (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. (b) Pending claim. 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 (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decisionmakers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." However, the Board notes that while the threshold is low, it is a threshold nonetheless. The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In making the determination of materiality, the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, the Justus credibility rule is boundless or blind; if the newly submitted evidence is inherently false or untrue. See Duran v. Brown, 7 Vet. App. 216, 220 (1994). That is, Justus does not require the Secretary to consider the patently incredible to be credible. See id. Additionally, ongoing treatment records are generally insufficient to reopen a claim. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence). In applying 38 C.F.R. § 3.156(b), the Court has clarified that: When a claim is filed and the RO renders an adverse decision, the claimant has the right to disagree with that decision by filing an NOD within one year from the date of mailing of notice of the decision. 38 U.S.C. § 7105(b)(1). However, "[n]ew and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed.Cir.2011). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Prior Board Decision In January 2005, the Board denied service connection for PTSD concluding that the Veteran did not actually have PTSD. The Veteran and his representative were provided with copies of the Board's decision. The Veteran subsequently appealed to the Court, but the Court affirmed the Board's decision in January 2007. The evidence upon which the Board formulated its decision may be briefly summarized. The Veteran's service treatment records make no reference to PTSD. A September 1986 written statement from M. Kaiser, Ph.D., conveys that the Veteran was tentatively diagnosed with "Post-Vietnam Era Stress Syndrome". A January 1999 written statement from G. Evans, M.D., conveys that the Veteran was diagnosed with PTSD as "a result of events that occurred in service." A February 1999 written statement from J. Moneypenny, Ph.D., relates that the Veteran had PTSD. An April 1999 written statement from Dr. Moneypenny clarifies that the Veteran had "a clear diagnosis of PTSD." The transcript of a March 2000 hearing before a Veterans Law Judge relates that the Veteran testified that his in-service stressors, which he believed had caused PTSD, included experiencing a flood and participating in the recovery efforts afterwards while stationed in the Philippines. New and material evidence pertaining to the issue of service connection for PTSD loss was not received by VA or constructively in its possession within one year of the January 2005 Board decision. That decision was subsequently affirmed by the Court and it is final. 38 C.F.R. § 3.156(b). New and Material Evidence The additional documentation received since the January 2005 Board decision consists of the Veteran's service personnel records, VA clinical documentation, Vet Center clinical documentation, Internet articles, the transcript of the February 2011 hearing before the undersigned Acting Veterans Law Judge, and written statements from the Veteran. At the February 2011 hearing, the Veteran testified that he received "ongoing VA treatment for severe PTSD." The Board notes that testimony is to be presumed to be credible for reopening purposes unless it is found to be incredible on its face. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the Veteran's testimony is simply incredible on its face. The Board has obtained hundreds of pages of the Veteran's VA treatment records, these are the very records which the Veteran asserted showed him being treated for severe PTSD. However, the VA treatment records from since his claim was previously denied simply do not show treatment for PTSD. To be blunt, the Veteran is simply not being treated for PTSD as he alleges. In reaching this conclusion, the Board is not weighing competing medical evidence. Rather, no medical evidence that has been submitted since the Veteran's claim for PTSD was previously denied has diagnosed him with PTSD. There is no suggestion that the record is incomplete. There are several references to PTSD in the treatment records, but it is only in the context of the Veteran trying to inform the medical professional that he has PTSD. No medical professional has actually rendered such a diagnosis. In fact, at a treatment session in October 2010, the Veteran even brought a fact sheet on PTSD and a copy of the revised PTSD regulations to his appointment, but no diagnosis of PTSD was rendered. In February 2010, a social worker at the Vet Center wrote that the Veteran had major depression, and suggested that his symptoms resembled those of PTSD. However, this is not considered to be a diagnosis of PTSD. As the author himself acknowledged that the Veteran was diagnosed with a psychiatric illness other than PTSD, namely major depression; and as noted, the Veteran has pursued a claim for service connection for depression separately. It is true that the Veteran has changed his stressor which he believes causes him to have PTSD from being involved in knife fights in service to being exposed to flooding damage in the Philippines. However, while new, this evidence is simply not considered to be material as the Veteran still is not diagnosed with PTSD. As such, even if this information was considered to be new, it is not considered to raise a reasonable possibility of substantiating the claim. The Board is fully aware in reaching this conclusion that this phrase is intended to enable rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, here, the Veteran's claim was previously denied because the weight of the medical evidence did not show his psychiatric symptomatology warranted a diagnosis of PTSD. This continues to be true, as none of the evidence submitted since the final Board decision, aside from the Veteran's incredible assertions, actually shows any treatment being received for PTSD, despite the fact that the Veteran has received considerable psychiatric treatment during this time. Thus, the validity of the stressor that is put forth is ultimately irrelevant to the Veteran's claim, because even if the facts of his reported stressor were accepted as fact in order to reopen his claim, once reopened this new information would not trigger any duty to assist, as the VA mental health professionals who have been treating the Veteran have already been made aware of his reported stressor, but again have found that his psychiatric symptomatology did not warrant a diagnosis of PTSD. The Board also notes that since the Veteran's claim for PTSD was previously denied, service personnel records were obtained and associated with the Veteran's claims file, in conjunction with a different claim. The Board is cognizant that at any time after VA issues 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. 38 C.F.R. § 3.156(c). However, here, the service personnel records are not considered relevant in that they do not address any in-service psychiatric treatment, nor do they suggest that the Veteran currently has PTSD. As such, the mere fact that they were obtained does not dictate that the Veteran's claim be reconsidered As discussed above, new and material evidence has not been received, the Veteran's claim of entitlement to service connection for PTSD is therefore not reopened. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to applications to reopen, the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), held that the terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, 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 evidence that must be presented. Specifically, VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as notified of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit in light of the specific bases for the prior denial of the claim. In the present case, the Veteran was informed in an October 2008 letter that in order to reopen his claim, he needed to provided new and material evidence regarding his claim for PTSD. It was also explained what new and material evidence meant. It is true that the letter stated that the Veteran's claim was previously denied because there was no record of treatment in service for PTSD and no evidence establishing a stressful experience during service. Indeed, at the Veteran's Board hearing, his representative expressed frustration that the Veteran had been told this, but that his claim was then denied because there was no diagnosis. The undersigned acting Veterans Law Judge then explained the requirements for reopening and the hearing testimony was focused on showing that the Veteran had PTSD. As such, this exchange during the Veteran's hearing clearly established that the Veteran and his representative were both aware that he needed to show evidence that he had PTSD. However, as discussed above in the more than 2 years since that hearing, no evidence has been submitted showing treatment for PTSD. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records, Vet Center records, service personnel and service treatment records have all been obtained, and the Veteran testified a hearing before the Board. While no VA examination was provided, VA does not have a duty to provide an examination if the claim is not reopened. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the appellant's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's application to reopen his claim of entitlement to service connection for PTSD is denied. ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs