Citation Nr: 1329593 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-32 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, how so ever described. WITNESSES AT HEARING ON APPEAL Appellant and friends ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from November 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Offices (RO), in St. Louis, Missouri, and Reno, Nevada, that, in pertinent part, reopened a claim of service connection for an acquired psychiatric disorder, described as a nervous disorder, and subsequently denied the claim of service connection for an acquired psychiatric disorder, described as either a nervous disorder or as a generalized anxiety disorder. The procedural history of the claim will be discussed below. The Veteran presently seeks to reopen the claim of service connection for the psychiatric disorder, last denied by the Board in June 1998. The Veteran did not appeal the prior final decision, and in order for VA to review the merits of the claim, the Veteran must submit new and material evidence. The Board is required to address this issue despite the RO's findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). As such, the issue has been captioned as set forth above. In August 2013, the Veteran testified at a video conference hearing over which the undersigned Acting Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c) (2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the August 2013 hearing, the undersigned clarified the issue on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Bryant. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. Service connection for an acquired psychiatric disorder was denied in a June 1998 Board decision as the evidence of record did not establish the manifestation of an acquired psychiatric disorder as a result of disease or injury during service. 2. Evidence submitted since the June 1998 Board decision does not relate to a fact necessary to substantiate the claim for service connection for an current acquired psychiatric disorder as a result of disease or injury during service, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The June 1998 Board decision, which denied service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (1997); currently 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (2013). 2. Evidence received since the June 1998 Board decision, which denied service connection for a current acquired psychiatric disorder is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Proper 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. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b) (1). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was provided with VCAA notice in a September 2009 letter (prior to the August 2010 rating decision), and in an October 2010 letter (prior to the October 2011 rating decision) with regard to the requests to reopen the claim for service connection for an acquired psychiatric disorder (variously described). The letters provided notice as to what evidence was required to substantiate his claim. This letters informed him of what evidence VA would obtain, of what evidence he was expected to provide, and of what assistance the VA could provide the Veteran in obtaining evidence from other agencies. In addition, this letter provided proper notice under Dingess. The September 2009 letter also informed the Veteran that his claim for service connection for an acquired psychiatric disorder had been previously denied. This letter informed him of the need for new and material evidence to reopen this claim, provided regulatory definitions of "new" and "material" and informed him of the bases for the prior June 1998 denial. This letter provided proper preadjudication notice as required by Kent. The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159 (c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c) (4). VA has no duty to provide an examination or obtain a medical opinion prior to reopening a claim that has been finally denied in a prior decision. 38 C.F.R. § 3.159(c) (4) (iii). VA has met the duty to assist the Veteran in the development of the instant claim. As the Veteran's claim is not being reopened, VA examination is not required. 38 C.F.R. § 3.159(c) (4) (iii). Reopening Service Connection Claims Service connection will be granted for a disability resulting from an injury sustained or disease incurred in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 , 3.304, 3.307 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may be established based on a legal "presumption" for Veterans with 90 days or more of active service after December 31, 1946, by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection will be granted for a chronic disease identified in service and at any time thereafter. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2013); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In this case, a June 1998 Board decision denied the Veteran's claim for service connection for an acquired psychiatric disorder. This decision of the Board is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (2013). However, if new and material evidence is presented or secured with respect to the claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and 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. By rating action in December 1990 service connection was denied for a nervous disorder. In making that determination, the RO found that no evidence had been submitted by the Veteran in support of his claim and there was no evidence of a nervous condition. In a June 1992 hearing officer decision, the hearing officer affirmed the prior denial of service connection. In April 1995, the Board remanded this case to the RO, in part, to request a list of all doctors and private facilities where the Veteran had been treated for his psychiatric disorders since service and or within one year following separation. Subsequent to the Board' April 1995 remand, VA received a Social Security Administration determination dated in February 1993 which awarded a disability pension for a schizophrenic personality disorder with secondary alcohol and marihuana addiction as of June 1989. By rating action in November 1995 the denial of service connection for a nervous disorder was affirmed. In making that determination, the RO found that the evidence submitted by the Social Security Administration was predominantly copies of records contained in the claims file and previously considered. The records contained an April 1991 reference to a nervous disorder. However no new evidence to support a diagnosis other than a personality disorder at separation from service was submitted. A June 1998 Board decision denied the Veteran's claim for service connection for an acquired psychiatric disorder. The Veteran was determined to have had a personality disorder which manifested during service; he did not have an acquired psychiatric disorder as a result of disease or injury during service: and, a current acquired psychiatric disability was not established by the record. This Board decision is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (1997); currently 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1100 (2012). The evidence considered by the Board in the June 1998 Board decision also includes the following: The June 1968 service entrance examination as well as the March 1970 service discharge examination was negative for any acquired psychiatric disorder. The service treatment records reveal the Veteran was evaluated by a psychiatrist in January 1970. The examiner's impression was of a pre-existing paranoid personality disorder. There was no evidence of an acquired psychiatric disorder. Administrative separation from service was recommended. Post service there were no treatment records for any psychiatric conditions submitted until August 1990 when the Veteran was seen at the VAMC. In December 1990, the Veteran offered testimony before a hearing Officer at the RO. In a VA examination in April 1992, the examiner discussed in detail several extensive psychological and psychiatric evaluations. The diagnoses were alcohol dependence, ongoing since 1970, moderately severe; cannabis abuse, ongoing; amphetamine abuse, ongoing; possible paranoid schizophrenia; R/O major depression with psychotic features; and, mixed personality disorder, with schizotypal, paranoid avoidant and schizoid features. Subsequently, in July 1997, the Board requested an outside independent medical expert (IME) opinion to address the issue. The Board noted the extensive history of this case outlining the issue as follows: It is not clear whether the Veteran has a personality disorder or a psychosis. A paranoid personality was diagnosed after a psychiatric examination during service, in January 1970. In May 1991, William F. Boyer, M.D., a psychiatrist and neurologist, examined the Veteran for the State of California and chose a diagnosis of schizotypal personality disorder over schizophrenia because of the chronic and apparently stable nature of the illness. In May 1991, Leslie Pratt Spellman, M.D., a neurologist, diagnosed a psychophysiologic disability and in July 1991, Dr. Spellman expressed the opinion that the Veteran was a paranoid schizophrenic. In October 1991, a clinical psychologist, Don E. Miller, Ph.D., presented a report which indicated that psychological test results could have varying interpretations and diagnosed a schizophrenic reaction, paranoid type. In April 1992, a VA physician examined the Veteran and concluded that he had a mixed personality disorder with paranoid, avoidant and schizoid features. The VA doctor also indicated a possible paranoid schizophrenia and recommended psychological testing. In September 1992, Dr. Miller noted that psychological testing had been done and it justified a diagnosed of paranoid schizophrenia. Dr. Miller conceded that the Veteran had previously had a schizotypal personality and moved to paranoid schizophrenia. The Board asked; What is the correct current diagnosis of any psychiatric disability the Veteran may now have? When was the disability first manifested? Please explain the reason for making the diagnosis and for ruling out other diagnoses which have been advanced by the various professionals who have examined the Veteran. What was the correct inservice diagnosis or diagnoses? In February 1998, the IME noted that he spent several hours reviewing, reading and rereading the various medical opinions and taken notes on these findings. He noted that he agreed with "my colleagues that [the Veteran] has significant psychopathology." Everyone except Dr. Singer is seeing him 20 years later and trying to reconstruct the past. He opined that: It is my professional opinion from the information that I have been given that [the Veteran's] inservice diagnosis was paranoid personality disorder and probably alcohol dependence and cannabis abuse. His current diagnosis, 'current' being when evaluated in the early 1990's would be alcohol dependence, cannabis abuse, and personality disorder, not otherwise specified, with paranoid schizoid and antisocial traits. His psychiatric difficulties were first manifested as an adolescent and have become progressively worse through the years. He had difficulty in childhood and was seen by a psychiatrist. He had difficulty with his brother and with teachers. He began drinking and using cannabis in high school. The record also reveals that he graduated from the University of Minnesota in 1975 with a degree in economics with a 3.0 grade point average. In his prior testimony he noted that he had no trouble in college. The IME noted that, "This information alone makes it very difficult to believe that [the Veteran] was a paranoid schizophrenic in the military since he was apparently not under a physician's care and did quite well in a relatively difficult degree program-- all after his time in the service." In addition 1991 psychological testing revealed MMPI and Rorschach test results which normally would be interpreted as someone "faking bad." The examiner commented that the testing did not display the degree of pathology one would predict from the MMPI. In fact the expected deterioration and bizarre thought was not present. The results were discussed with a clinical psychologist who opined that many scales were elevated too high on the MMPI which seriously questioned the validity. The IME noted that, "This coupled with a significantly less ill individual on the Rorschach leads me to conclude that [the Veteran] was not as psychotic as he portrayed himself." In conclusion the IME noted that: Drs. Singer, Boyd, and Martindill all diagnosed [the Veteran] with various personality disorders. Our classification of personality disorders has changed since Dr. Singer's original diagnosis, but the prominent features of the disorder are similar. Although neurology and psychiatry are very closely intertwined, I do not appreciate that Dr. Spellman frequently evaluated individuals with serious psychiatric disorders, so I tended to give her diagnoses less weight than others. Also, even though Dr. Martindill conceded the possibility of paranoid schizophrenia, I do not find that Dr. Miller's testing definitively made that diagnosis. Finally, while it is possible for individuals initially diagnosed as schizotypal (or even paranoid) personality disorder to later move to (or be rediagnosed as) paranoid schizophrenia, my review of the evidence would suggest that this did not occur, at least not before [the Veteran's] graduation from college, and with my interpretation of Dr. Miller's testing not-at-all." The June 1998 Board decision denied the Veteran's claim for service connection for an acquired psychiatric disorder. In an August 2010 rating decision, the RO reopened the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, described as a nervous condition, but denied the Veteran's claim. In the October 2011 rating decision, the RO again denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, now claimed as a generalized anxiety disorder. As indicated 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 v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Court has held that the Board is obliged to determine in the first instance whether there is new and material evidence to reopen the claim, regardless of the RO's action. Barnett v. Brown, 8 Vet. App. 1 (1995). 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. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 138. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). The evidence of record at the time of the last final denial in June 1998 consisted of the Veteran's service treatment records, private, Social Security Administration, VA medical records, examination reports, the Veteran's statements, and statement's of friend's in support of his claim. It also includes the very detailed February 1998 IME report and opinion. The Veteran's pertinent medical evidence and history has been discussed above and need not be repeated in depth here. The evidence of record since the last final denial in June 1998 includes VA treatment records dated from July 2009 to May 2012. The records reflect a current diagnosis of an acquired psychiatric disorder and a personality disorder which predated service. The Board finds that none of the additional evidence raises a possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder, how so ever described. The VA records from July 2009 to May 2012 are new as they were not previously of record. However, they are not material as they do not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In the June 1998 Board decision, the Veteran was determined to have had a personality disorder which manifested during service; he did not have an acquired psychiatric disorder as a result of disease or injury during service: and, a current acquired psychiatric disability was not established by the record. As such, medical evidence establishing an acquired psychiatric disorder as a result of disease or injury during service: and, a current acquired psychiatric disability was required to reopen his claims. Evidence of a current acquired psychiatric disability, generalized anxiety disorder, has been received subsequent to the June 1998 Board decision. However as noted prior to the June 1998 Board decision he was also diagnosed with possible paranoid schizophrenia, and a nervous condition. The medical evidence however does not establish that an acquired psychiatric disorder was a result of disease or injury during service. The subsequent VA treatment records document current treatment for a generalized anxiety disorder, severe, chronic (July 2009). A January 2010 VA treatment record (signed by a VA psychiatrist, Mojtaba R. Motlagh) submitted by the Veteran noted a diagnosis of anxiety disorder. The clinician noted a history reported by the Veteran that he was OK, "until he was exposed to some psychological trauma at the service." During an August 2013 video conference hearing, the Veteran, in essence, offered testimony that was similar in content to his previous December 1990 hearing before a hearing Officer at the RO. The Veteran's repeated statements that he currently has an acquired psychiatric disorder, how so ever described, as a result of his period of active service are duplicative of evidence previously considered. Likewise, the additional service records and medical evidence submitted by the Veteran are all duplicates of evidence previously submitted and considered by the Board in its prior denial of service connection. These documents, therefore, cannot serve as the basis of consideration of this as an original claim under 38 C.F.R. § 3.156(c) (I). As none of the additional evidence received since the June 1998 Board decision establishes a current acquired psychiatric disorder as a result of disease or injury during service, and the absence of such evidence was the basis for the prior denial, new and material evidence has not been received. The claim is therefore, not reopened, and the appeal must be denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence not having been received; the claim for service connection for an acquired psychiatric disorder is not reopened. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs