Citation Nr: 1328846 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-50 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the previously denied claim of entitlement to service connection for residuals of a neck injury. 2. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to May 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the Veteran's claims. In his December 2009 substantive appeal [VA Form 9], the Veteran requested to appear at a personal hearing before a Veterans Law Judge. However, in a statement dated November 2010, the Veteran withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). The issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. In a May 2006 decision, the Board denied the Veteran's claim of entitlement to service connection for residuals of a neck injury. 2. The evidence submitted since the May 2006 Board decision is cumulative and redundant of the record at the time of the prior final denial of service connection for residuals of a neck injury, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A May 2006 Board decision denying the claim of entitlement to service connection for residuals of a neck injury is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). 2. Since the May 2006 Board decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for residuals of a neck injury; this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the residuals of a neck injury claim, a pre-decisional notice letter in December 2008 complied with VA's duty to notify the Veteran with regard to this issue. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, in the December 2008 letter, the RO informed the Veteran of its duty to assist him in substantiating his new and material claim under the VCAA, and the effect of this duty upon this issue. This letter informed him of what constituted new and material evidence to reopen the previously denied, unappealed claim. He was informed that evidence is new if it is submitted to the VA for the first time and that material evidence must pertain to the reason the claim was previously denied. This correspondence also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denials and the evidence needed to reopen the claim for service connection. Regarding VA's duty to assist as to the current issue on appeal, the RO obtained the Veteran's service treatment records (STRs), service personnel records, as well as VA and private treatment records in furtherance of his claim. There is no indication that any additional action is needed to comply with the duty to assist. With regard to the residuals of a neck injury claim, an examination is not necessary if no new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). As will be discussed below, the Veteran has not submitted evidence sufficient to reopen the pending claim. Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. II. New and material evidence claim In the current appeal, the Veteran contends that he suffers from residuals of a neck injury that was sustained in service. In this regard, review of the claims file shows that service connection for residuals of a neck injury was denied by the Board in a decision dated in May 2006. He did not appeal the decision to the United States Court of Appeals for Veterans Claims (Court). The May 2006 Board decision is therefore final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105. 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. 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 v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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). For applications filed after August 29, 2001, as was the application to reopen the claim in this case, 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 claims. See 38 C.F.R. § 3.156(a) (2013). 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. Browns, 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). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). As noted above, the Veteran's claim for service connection for residuals of a neck injury was last previously considered and denied in the May 2006 Board decision. The evidence associated with the Veteran's claims file at the time of the May 2006 Board decision includes, but is not limited to, VA and private treatment records, STRs, service personnel records, lay statements including the Veteran's personal testimony, and his September 1999 claim. At the time of the May 2006 Board decision, the Veteran's contentions of a current neck disability (specifically, residuals of an anterior cervical discectomy) resulting from an injury incurred in a motor vehicle accident during his Reserve service, were already of record. See, e.g., the August 2002 Board hearing transcript. Alternatively, the Veteran previously asserted that he injured his neck during active duty when he fell from a fire truck turret. Id. Here, the Veteran's available service records from his period of active duty service from 1981 to 1984 as well as his subsequent service in the Army Reserves were previously of record. His May 1981 enlistment examination documented an automobile accident prior to service, which occurred in 1974 or 1975. Notably, an April 1988 service treatment record indicated that the Veteran had suffered a motor vehicle accident one year prior with diagnosis of whiplash. Private hospital records dated June 1988 to August 1988 showed the Veteran was involved in an automobile accident in April 1988 and two months later, in July 1988, he was found to have an incidental aquaductal stenosis of the left ventricle. A ventriculoperitoneal shut was then implanted for drainage of high pressure cerebrospinal fluid. The Veteran was admitted again in August 1988 for massive bilateral subacute subdural hematoma of an unknown origin. The Board developed the case in October 2002 in order to obtain additional VA and private medical treatment records and to obtain verification of the Veteran's Reserve service dates as well as any line of duty investigations involving an automobile accident in 1988. The National Personnel Records Center (NPRC) responded that there were no additional records available pertaining to the Veteran. It was noted that a line of duty determination was not on file for a reported 1988 automobile accident. The available personnel records did not show that the Veteran was involved in a motor vehicle accident during active duty service or Reserve service. Post-service VA and private treatment records documented the Veteran's complaints of neck pain. See the VA treatment records dated April 1995 and the private treatment records dated March 1995. Magnetic resonance imaging (MRI) performed in April 1995 revealed: "1. Large posterior disc herniation centrally and extending to the left side of midline compressing the cervical cord and the left C6 exiting nerve root at C5-6; 2. Mild disc bulge at C4-5 and C7-T1 without compression of the cervical cord." VA treatment records dated May 1995 confirmed that the Veteran underwent an anterior C5-6 cervical discectomy. VA treatment records demonstrated that he subsequently experienced pain and other residuals of the cervical discectomy. See, e.g., the VA treatment records dated June 2001. As indicated above, the May 2006 Board denial of the Veteran's claim is final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2013). The Board's inquiry will therefore be directed to the question of whether any additionally received evidence bears directly and substantially upon the specific matter under consideration. After a thorough review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence sufficient to reopen the claim of entitlement to service connection for residuals of a neck injury has not been submitted. The evidence associated with the claims file subsequent to the May 2006 Board decision includes, but is not limited to, the Veteran's October 2008 claim to reopen; VA treatment records; and lay statements of the Veteran. Medical evidence has been added to the record indicating that the Veteran continues to suffer from a neck disability. Specifically, an MRI conducted in December 2009 documented "stable multi-level degenerative disc disease, uncovertebral disease and facet disease" as well as "short pedicles." Additionally, the Veteran has submitted statements asserting that he suffers from a symptomatic surgical scar of the neck due to the cervical discectomy necessitated by the in-service neck injury. See, e.g., the Veteran's claim dated October 2008. To the extent that the Veteran continues to assert that he has residuals of an in-service neck injury, his repeated contentions are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Further, this evidence cannot be considered "material" because it is reiterative of the medical evidence already of record documenting a currently diagnosed neck disability as well as the Veteran's contentions of in-service injury and continuing symptomatology. Moreover, while the Board acknowledges that the Veteran is presumed credible for the purpose of determining whether new and material evidence has been submitted, the record does not indicate that he is competent to opine on complex medical questions such as the etiology of his claimed neck disability. The Board has considered the recent holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id. See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, in the current appeal the Veteran has not provided evidence or argument concerning nexus between the claimed residuals of a neck injury and his military service, which was not reiterative of the evidence previously of record. Accordingly, his contentions made during the current appeal may not be deemed to be material. Shade, supra. The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so. 38 U.S.C.A. § 5107(a). As the additionally received evidence does not tend to establish a nexus, it does not raise a reasonable possibility of substantiating the claim on the merits. See 38 C.F.R. § 3.156 (2013). The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for residuals of a neck injury may not be reopened. The benefit sought on remains denied. ORDER The claim to reopen the previously denied claim of entitlement to service connection for residuals of a neck injury is denied. REMAND The May 2006 Board decision also denied service connection for a psychiatric disability, however, the issue of service connection for PTSD is sufficiently new that the Board will address the matter on a de novo basis and is remanding the claim for further development. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2013); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The regulation further requires the diagnosis to be in conformance with Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV). See 38 C.F.R. §§ 3.304(f); 4.125(a) (2013). With respect to the pending claim, the Veteran contends he incurred an acquired psychiatric disorder to include PTSD during his active military service. Specifically, the Veteran has alleged that he incurred PTSD due to watching a fellow soldier fall from a rope during basic training. See the Veteran's PTSD questionnaire dated August 2009; see also the VA treatment records dated October 1998 and December 2002. He has also reported incurring a psychiatric disorder after he was scared when someone threw a snake in his foxhole. See the VA treatment record dated December 2002. Additionally, the Veteran previously argued that he incurred an acquired psychiatric disorder as a result of border patrol duties while he was stationed in Germany during which he saw enemies pointing guns at him. See the Veteran's statement dated February 2002. A review of the record documents diagnoses of PTSD; however, it is unclear whether these diagnoses were made pursuant to the DSM-IV criteria. See the VA treatment records dated October 1998, December 2002, April 2005, and December 2009. The Veteran's medical records also document several other psychiatric diagnoses including psychotic disorder, not otherwise specified (NOS), organic affective disorder, bipolar disorder with psychotic symptoms, and major depressive disorder (MDD). See, e.g., the VA treatment records dated August 1999, December 2002, November 2005, and December 2009. There is currently no competent medical evidence of record that addresses the question of medical nexus with regard to these diagnosed psychiatric disorders. Thus, the acquired psychiatric disorder claim presents certain medical questions concerning diagnoses and nexus, which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions must be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Upon remand, the Veteran should therefore be afforded a VA examination to address the outstanding questions of diagnoses and nexus pertaining to the pending claim. Additionally, review of the record (including the Veteran's physical VA claims file as well as his Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received, or undergone, at the VA Medical Center (VAMC) in Hampton, Virginia, or any other VA facility, since June 2010. All such available documents should be associated with the claims file. 2. Thereafter, arrange for the Veteran to be scheduled for a VA psychiatric examination to determine the existence, nature and etiology of any current chronic psychiatric disorder to include PTSD. The claims file must be made available to the examiner for review. After examination and review of the claims file, the examiner should address the following: (a) The examiner should either diagnose PTSD or rule it out as a diagnosis. The examiner should document all other current psychiatric diagnoses. (b) If the examiner diagnoses the Veteran with PTSD, the examiner should indicate whether it is at least as likely as not that the Veteran's currently diagnosed PTSD is due to the claimed in-service stressors. (c) The VA examiner should also render an opinion as to whether the Veteran's currently diagnosed acquired psychiatric disability is traceable to his military service. In answering these questions, the examiner should address the Veteran's VA and private treatment records. If the examiner rejects the Veteran's theories of service incurrence, the detailed medical reasons for rejecting those theories should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones, supra. (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Thereafter, readjudicate the issue remaining on appeal - entitlement to service connection for an acquired psychiatric disorder to include PTSD. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs