Citation Nr: 1330662 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 07-10 133A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection/compensation for a psychiatric disorder, to include under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1964 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the VA Regional Office (RO) in Chicago, Illinois. The case was remanded in November 2007, February 2012 and March 2013 to satisfy VA's duties to notify and assist, including obtaining the Veteran's vocational rehabilitation file. The Veteran's vocational rehabilitation file was unable to be obtained as discussed in detail below. Therefore, review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. In an unappealed May 1985 decision, the Board denied service connection/compensation for a psychiatric disorder, to include as related to vocational rehabilitation training under the provisions of 38 U.S.C.A. § 351. 2. Evidence received after the May 1985 denial does not relate to unestablished facts necessary to substantiate the claim and does not raise a reasonable possibility of substantiating that underlying claim. CONCLUSIONS OF LAW 1. The Board's May 1985 denial of service connection/compensation for a psychiatric disorder, to include as related to vocational rehabilitation training under the provisions of 38 U.S.C.A. § 351 is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104 (2013); 38 C.F.R. § 20.1100 (2012). 2. Evidence received since the final May 1985 decision is not new and material. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has a 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 & 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 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. Such 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). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. The Veteran was notified in a letter dated in May 2013 regarding the type of evidence necessary to establish his claim. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter 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). The correspondence also informed the Veteran of the basis of the prior final denial of his claim for service connection/compensation for a psychiatric disorder, to include under the provisions of the precursor to38 U.S.C.A. § 1151, 38 U.S.C.A. § 351 in May 1985. The letter notified the Veteran of the definition of new and material evidence. Accordingly, the Board concludes that VA has met its duty to notify the Veteran in this appeal. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and post-service medical records in furtherance of his claim. VA attempted to obtain the Veteran's vocational rehabilitation training file from when he attended college from 1970 to 1975. The Veteran was notified in May 2013 of VA's inability to obtain those records. A July 2013 memorandum set forth VA's exhaustive efforts to obtain the Veteran's vocational rehabilitation training file and that such records were determined to be unavailable for review. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Board recognizes that the Veteran has not been afforded a VA examination in connection with his petition to reopen; the Board observes that an examination is not necessary if no new and material evidence has been received (as is the case in the instant appeal). 38 C.F.R. § 3.159(c)(4)(iii). II. Analysis The Veteran contends that he has a psychiatric disorder that was caused or aggravated by VA vocational rehabilitation training in the 1970s when he obtained a college degree. See, e.g., March 2005 claim. Although the Veteran was previously denied service connection both on this basis and as directly related to his military service, as he has only contended that it is due to vocational rehabilitation training during this appeal, the Board will only consider this theory of entitlement. Entitlement to compensation for a psychiatric disorder, claimed to be related to VA vocational rehabilitation training was denied in May 1985 because the Veteran's participation in vocational rehabilitation training did not proximately cause or aggravate a psychiatric disorder. In other words, evidence of record did not support evidence of a nexus between the Veteran's training and a psychiatric disorder. After receiving notice of the May 1985 decision, the Veteran did not initiate an appeal of the denial of this issue. Later, in March 2005, however, he applied to have his claim reopened. A decision of the Board is a final decision, effective as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. 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. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, relevant evidence of record at the time of the May 1985 decision consisted of the Veteran's STRs, VA treatment records dated from the 1968 to 1980s, a VA examination in November 1968, private psychiatric evaluations in April 1981 and January 1983 and the Veteran's contentions, including his testimony at June 1977 and May 1979 hearings. His STRs showed that he was diagnosed with passive personality in July 1966 opined to have existed prior to service. At a VA examination in November 1968 for an in-service head injury, the Veteran was diagnosed with passive-aggressive personality as part of a seizure disorder. He was diagnosed with anxiety neurosis in January 1974; no opinion regarding the etiology was provided. At his June 1977 hearing, the Veteran testified that he had nervous problems since service. The Veteran testified about having anxiety neurosis and that his symptoms began since he left service at the May 1979 hearing. An April 1981 evaluation shows that the Veteran was diagnosed with paranoid schizophrenia; no opinion regarding the etiology was provided. He was again diagnosed with paranoid schizophrenia in January 1983. In a January 1985 statement, the Veteran reported that his anxiety began while attending college. Although the Veteran's vocational rehabilitation folder is not of record, the evidence shows that the Veteran attended college from 1970 to 1975, earning a bachelor's degree. There is no indication that a psychiatric disorder was proximately caused by his vocational rehabilitation training, nor was a preexisting psychiatric disorder aggravated by such training. Accordingly, at the time of the denial of the claim for service connection/compensation for a psychiatric disorder related to VA vocational rehabilitation training in May 1985, the claims folder contained no competent evidence that his training proximately caused or aggravated a psychiatric disorder. Thus, the Board, in May 1985, denied the claim for service connection/compensation a psychiatric disorder related to VA vocational rehabilitation training. The Veteran did not appeal the Board's decision and that denial became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. 38 C.F.R. § 3.104 (2013); 38 C.F.R. §§ 20.200, 20.302, 20.1100 (2012). In reaching the conclusion that the May 1985 decision is final, the Board is cognizant of the recent holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2011). However, 38 C.F.R. § 3.156(b) refers to evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed. 38 C.F.R. § 3.156(b) (2013). Here, the May 1985 Board decision was the appellate decision for the Veteran's claim filed in 1982 for a psychiatric disorder claimed as related to VA vocational rehabilitation training. As such, the Board concludes that the May 1985 Board decision is final. Under the current law pertaining to additional disability from vocational rehabilitation, where any veteran shall have suffered an injury or an aggravation of an injury as a result of the pursuit of a course of vocational rehabilitation under Chapter 31 of Title 38, awarded under any of the laws administered by the Secretary, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability, disability compensation shall be awarded in the same manner as if such disability or aggravation were service-connected. A claim for compensation under 38 U.S.C.A. § 1151 must be accompanied by medical evidence of a current disability and medical evidence that the current disability resulted from VA hospitalization, medical examination, or treatment. Precedent opinions of the VA General Counsel have noted that, although claims under section 1151 are not based upon actual service connection, there are similarities in their adjudication, including the requirement of medical evidence to establish a causal connection between the claimed injury and the disability in issue. See VAOGCPREC 7-97 (Jan. 29, 1997); VAOGCPREC 8-97 (Feb. 11, 1997). To establish that training and rehabilitation services or a compensated work therapy (CWT) program proximately caused a veteran's additional disability, it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT program provided or authorized by VA under either 38 U.S.C.A. § 3100 et seq. or 38 U.S.C.A. § 1718 resulted in the disability. 38 C.F.R. § 3.361(d)(3) (2012). The relevant evidence received since the May 1985 denial consists of VA treatment records dated through November 2006, a VA examination in May 1992, private treatment records and the Veteran's contentions. The Veteran's VA treatment records show a diagnosis of anxiety disorder. None of his records show that his taking of college classes caused or aggravated a psychiatric disorder. He was diagnosed with chronic anxiety at the May 1992 examination; no opinion regarding the etiology was provided. The Veteran's contentions are cumulative or duplicative of those at the time of the May 1985 Board decision. Thus, this newly received evidence does not relate to unestablished facts necessary to reopen the previously denied claim of service connection/compensation for a psychiatric disorder, to include under the provisions of 38 U.S.C.A. § 1151, because it does not tend to show the Veteran's vocational rehabilitation caused or aggravated a psychiatric disorder. Although additional treatment records dated through 2006 are new, they are not material since they fail to show that the Veteran's vocational rehabilitation caused a psychiatric disorder or aggravated a preexisting psychiatric disorder. No medical professional has provided any opinion showing that the Veteran's college courses taken from 1970 to 1975 caused a psychiatric disorder or aggravated a psychiatric disorder. In reaching this determination, the Board is cognizant of the 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 claimant'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 claimant'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). Here, the Veteran's statements are cumulative or duplicative of those previously made at the time of the May 1985 denial. Therefore, while new, they are not material. Accordingly, and based on this evidentiary posture, the Board must deny the Veteran's application to reopen this previously denied issue. ORDER New and material evidence sufficient to reopen the previously denied claim of service connection/compensation for a psychiatric disorder, to include under the provisions of 38 U.S.C.A. § 1151 having not been received, the application to reopen this issue is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs