Citation Nr: 1331256 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-17 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include schizophrenia (also claimed as a nervous condition, nerves, and hyperventilation). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1973 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In January 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion regarding the RO's compliance with the January 2011 Board Remand is included in the Duties to Notify and Assist section below. The Veteran, through his representative, submitted additional evidence after the case was certified to the Board; however, the Board finds no reason to seek a waiver of consideration of this evidence by the RO or to remand the matter for RO consideration of the evidence, as the documents consist of several duplicate copies of service records, which were already in the claims file, as well as treatment records which do not pertain to issue on appeal. 38 U.S.C.A. § 20.1304 (2013). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. In an unappealed February 1999 rating decision, the RO denied reopening the claim seeking service connection for an acquired psychiatric disability (claimed as hyperventilation). 2. The evidence received subsequent to the February 1999 rating decision does not relate to an unestablished fact necessary to substantiate the claim; it is cumulative and redundant of evidence already of record; and, it does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening the claim seeking service connection for an acquired psychiatric disability, to include schizophrenia, are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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), 3.159, 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted his application to reopen service connection for a psychiatric disability in February 2008. He was sent a letter that same month, which advised him of the information and evidence necessary to substantiate the merits of the claim. The February 2008 letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b). In January 2011, the Board remanded the claim to address the Court's decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), which clarified VA's duty to notify in the context of claims to reopen. The Court held that VA must 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, VA 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. In compliance with the January 2011 Board Remand, the RO sent the Veteran a letter in March 2011 which addressed the specific notice elements identified in the Kent decision. See Stegall, 11 Vet. App. at 268. The RO then readjudicated the issue in June 2012, finding that new and material evidence had not been received for the claim. The Court acknowledged in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that where certain notice was not provided prior to the initial rating decision, the appropriate remedy is to provide content complying notice with proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Only certain aspects of the duty to assist under the VCAA apply to applications to reopen finally decided claims, in particular, paragraphs (c)(1), (c)(2), and (c)(3) of 38 C.F.R. § 3.159 covering obtaining records from Federal sources, non-Federal sources, and service records. See 38 C.F.R. § 3.159(c)(1)-(3); see also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened). Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and Social Security Administration (SSA) records. Under 38 C.F.R. § 3.159, a VA examination is not necessary prior to reopening a finally decided claim. As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall at 271. While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's January 2011 remand instructions by providing appropriate VCAA notice. The RO also requested records pertaining to the Veteran's psychiatric treatment at VA clinics, specifically, from 1992 to 1999. The RO also requested that the Veteran provide authorization identifying the name and addresses of all psychiatric disability providers. All records identified by the Veteran, including VA treatment reports from 1992 to 1999, were obtained and associated with the claims file or the Veteran's file in Virtual VA. The Board finds that these actions substantially comply with the Board's remand instructions, and no corrective action is necessary. There is no reasonable possibility that any records are outstanding or that additional development action would prove fruitful. Applications to Reopen In a September 1989 rating decision, the RO denied a claim seeking service connection for an acquired psychiatric disability (claimed as a nervous condition, "nerves," and hyperventilation). The Veteran initiated an appeal as to the denial of service connection for an acquired psychiatric disability; however, he did not perfect the appeal following the issuance of a statement of the case. In a February 1999 decision, the RO denied reopening the claim. At the time of the February 1999 decision, the evidence of record consisted of the Veteran's service treatment records, post service treatment records, a VA examination report dated in February 1984, a November 1983 report from the Human Resources Center of Volusia County, Mental Health, and the Veteran's assertions regarding the claim. In his initial claim, adjudicated in September 1989, the Veteran's assertions regarding his psychiatric claim were that symptoms of a psychiatric disability began in service. A service treatment record from October 1973 indicated the Veteran's complaint of hyperventilation. The examiner stated that hyperventilation improved with a brown bag. A separation examination is not of record. Post-service, the Veteran first sought psychiatric treatment at the Human Resources Center of Volusia County, Mental Health in December 1982 (approximately nine years after separation from service), when an initial diagnosis of schizophrenia, undifferentiated type, was made. Upon VA examination in February 1984, the Veteran reported that, during the three months of active service, he took physical training tests 14 times, flunked, and was discharged from service. The February 1984 examiner diagnosed chronic schizophrenia and borderline mental retardation. Reopening of the claim was denied by the RO in February 1999. Regarding the psychiatric disability, the evidence established a current diagnosis of schizophrenia, but did not establish continuity of symptomatology of a psychosis after service, or manifestation of psychosis within one year of service. The evidence also did not relate any psychiatric diagnosis to service. Although notified of the RO's decision and of his right to appeal, the Veteran did not initiate an appeal of the February 1999 decision (see 38 C.F.R. § 20.200 (2013)). 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). In this regard, additional service records were submitted by the Veteran's representative; however, these records contained duplicate copies of the induction examination and service treatment records, which had already been considered. As the records are cumulative and redundant of evidence already considered, these additional service records do not require reconsideration of the claim. In addition to reconsideration of a claim based on relevant official service department records, VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. In this case, new and material evidence was not received prior to the expiration of the appeal period. Indeed, after February 1999, the record does not reveal any evidence or argument pertaining to the psychiatric disability until the Veteran's claim to reopen entitlement to service connection for an acquired psychiatric disability (now claimed specifically as schizophrenia) in February 2008. Regarding applications for reopening filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the Court held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Evidence received since the February 1999 decision includes copious VA treatment records, SSA records, and additional assertions from the Veteran, through his representative. The Board finds that this evidence, although new, is not material, as it does not address any unestablished fact necessary for service connection. While this evidence reveals ongoing treatment for an acquired psychiatric disability, specifically schizophrenia, a diagnosis of schizophrenia had already been of record at the time of the February 1999 decision. The evidence does not address whether there were manifestations of schizophrenia within one year of service separation, continuity of psychiatric symptomatology after service, or a relationship between schizophrenia, or any other psychiatric disability, and service. A May 2013 Informal Hearing Presentation from the Veteran's representative included photocopies of the Veteran's service medical records in support of the claim. The service treatment records submitted by the Veteran's representative were duplicates of service treatment records previously of record, and included an induction examination and an October 1973 service treatment record that revealed the Veteran's complaint of hyperventilation. The duplicate copies of service records are manifestly cumulative and redundant evidence, and the Veteran's assertion regarding an in-service psychiatric symptom was of record and considered in the February 1999 decision. In short, the evidence received since the February 1999 denial of reopening of service connection for an acquired psychiatric disability, to the extent that it pertains to any unestablished fact necessary for service connection, is cumulative and redundant of evidence already of record and considered in the February 1999 decision. It is not new and material evidence, and reopening the claim of service connection for an acquired psychiatric disability is not warranted. The Board emphasizes that it has not evaluated the credibility of any of the additional evidence received since the February 1999 rating decision. The credibility of this evidence is presumed. See Justus, 3 Vet. App. at 512-513. The decision that new and material evidence has not been received is based solely on how that evidence relates to the elements of service connection that were unestablished at the time of the February 1999 rating decision. The Board acknowledges the argument of the Veteran's representative in May 2013 that the Veteran has submitted new and material evidence consisting of his continued allegations that the condition began in service. The Veteran is competent to report his symptoms and experiences in service, and his assertions are presumed to be credible for the purposes of reopening the claim. Nevertheless, as described above, the Veteran's assertions in regard to his applications to reopen are substantially and materially similar to assertions he made previously at the time of the February 1999 rating decision (they are simply his continued contentions that he has made both prior to and after the February 1999 rating action). Indeed, they are not new; he is simply repeating his prior claims. As such, these assertions are not new and material evidence. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim seeking service connection for an acquired psychiatric disability, to include schizophrenia, has not been received. As the Veteran has not fulfilled the threshold burden of submitting or identifying new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER Reopening of the claim seeking service connection for an acquired psychiatric disability, to include schizophrenia, is denied. ____________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs