Citation Nr: 1327013 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-04 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder, to include schizophrenia and/or posttraumatic stress disorder (PTSD), has been received. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA). In connection with the current appeal, the Veteran's claim submitted in June 2008 reflects that he sought service connection for PTSD. In his January 2009 notice of disagreement, the Veteran indicated that he sought service connection for both PTSD and schizophrenia. On his VA form 9 submitted in February 2010, the Veteran stated that he wanted to reopen a claim for service connection for schizophrenia; he stated that he was not claiming service connection for PTSD. The Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of this holding, and the fact that in an April 2003 decision the Board denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, the issue on appeal has been characterized as listed above. In June 2008, the Veteran appointed Disabled American Veterans as his representative before the VA. In a statement received in February 2009, the Veteran revoked this appointment. VA has not received any other appointment of an accredited representative from the Veteran since February 2009. As such, the Veteran is considered to be representing himself before the Board. FINDINGS OF FACT 1. In April 2003 the Board denied service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia. The Chairman of the Board has not ordered reconsideration of that decision. 2. The evidence received since the April 2003 Board decision is cumulative or redundant of evidence previously of record, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and/or schizophrenia. CONCLUSIONS OF LAW 1. The Board's April 2003 denial of service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, is final. 38 8 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2002). 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and/or PTSD. 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 thoroughly reviewed all the evidence in the Veteran's claims file. 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 submitted by or on behalf of the appellant. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that 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 appellant 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) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 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 or her 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) (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. The Court has also issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. VCAA letters dated in July 2008 and February 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, these letters described how appropriate disability ratings and effective dates were assigned. These letters also advised the Veteran of the reason for the previous final denial of service connection for PTSD and schizophrenia, and instructed him on the meaning of new and material evidence. The claim was subsequently readjudicated in the January 2010 statement of the case and a May 2010 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, VA medical treatment records, and private medical records are in the file. The Board notes that in February 2009, the Veteran submitted VA form 21-4142, authorizing VA to obtain his treatment records from Kenneth Counts, Ph.D. He did not include an address for Dr. Counts. In August 2009, the RO sent the Veteran a letter asking for an address for Dr. Counts. The letter also informed the Veteran that he could personally submit his treatment records from Dr. Counts. The Veteran did not respond to the August 2009 letter. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (noting that VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The Board finds no indication that other available, outstanding treatment records exist. Therefore, in light of the efforts described above, the Board concludes that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. The Board notes that the Veteran has not been scheduled for or provided with a VA examination in connection with his current claim. However, the Board observes that with respect to a previously denied claim, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(1) (2012). 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. New and Material Evidence A. General Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that 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. See 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See 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 presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Acquired Psychiatric Disorder, to include PTSD and/or schizophrenia In an April 2003 decision, the Board determined that service connection was not warranted for an acquired psychiatric disorder, to include PTSD and schizophrenia. The Board reviewed the Veteran's service treatment and personnel records and noted that the Veteran received treatment for a hypochondriacal neurosis and hyperventilation syndrome while on active duty. The Board considered April 1993, October 1994, and August 1996 letters from D.S., Ph.D.; September 1998 and October 1998 letters from J.M., Ph.D., and an additional record from B.B., M.S., all of which ostensibly supported the Veteran's claim that he had a psychiatric disorder that could be related to his active service. The Board weighed these records against September 1995, November 1995, June 2001, and October 2002 VA medical opinions which reflected that the Veteran did not have a psychiatric disorder that could be related to his active service. The Board found that the VA medical opinions outweighed the other opinions of record. The Board also reviewed and commented on the Veteran's extensive post-service medical history, which included records from the Arkansas State Hospital; VA medical records; records from the Social Security Administration; and psychiatric reports from K.W., K.M., J.P., M.K., J.S., P.L., and J.W.. The Board noted that none of these records indicated that a psychotic process was present in service or within one year thereof, or otherwise related a psychiatric disorder to service. The Board recognized that a statement from J.W. indicated that the Veteran developed psychiatric symptoms sometime after 1971, and did not provide a medical nexus between a psychiatric disorder and the Veteran's active duty. The Board further commented that although other treatment records showed the presence of depression, there was no medical evidence of a nexus between depression and service. Further, although there were references to personality disorders in the record; congenital or developmental abnormalities, to include personality disorder, were not "diseases or injuries within the meaning of applicable legislation," and did not constitute disability for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. The Board further found that there was no medical evidence to show that a constitutional or developmental abnormality was aggravated by superimposed disease or injury. Also of record at the time of the April 2003 Board decision were a letter from L.H., military operational reports, information regarding issuance of awards, pages from a book concerning Vietnam, and other lay statements. The Veteran did not appeal the April 2003 Board decision, and it became final. 38 U.S.C.A. §§ 7104, 7105, 7266; 38 C.F.R. § 3.104. Additionally, the Chairman of the Board has not ordered reconsideration of that decision. 38 C.F.R. § 20.1100. Upon close review of the evidence pertaining to this claim, the Board has concluded that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and/or PTSD. The Veteran has submitted an August 1996 letter from D.S., a February 1999 letter from B.B., a September 1998 letter from J.M., an undated letter from L.H., information regarding issuance of awards, and military operational reports. All of these records are exact copies of evidence that was previously before the Board at the time of the April 2003 Board decision. As such, these records are not considered new, as they were previously before the Board at the time of the prior denial of the claim. VA treatment records from 1999 through the present, a July 1999 letter from J.M., and a March 2010 letter from J.M. have been added to claims file. These records are new, as they were not of record at the time of the April 2003 Board decision. However, all of these records merely reflect that the Veteran has been treated for schizophrenia. As such, these records, although new, are not material. The fact that the Veteran had a diagnosis of schizophrenia was considered at the time of the previous final decision; therefore, these records are cumulative. In essence, the evidence added to the record since the April 2003 Board decision does not raise a reasonable possibility of substantiating the claim. In summary, the defects existing at the time of the prior final decision have not been cured, and the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and/or schizophrenia may not be reopened. ORDER New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and/or PTSD, is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs