Citation Nr: 1331703 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-37 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disability, to include depression. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty for training from March 1978 to June 1978 and active duty from June 1979 to May 1980 with other National Guard duty thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the St. Louis, Missouri, regional office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. In a May 2001 rating decision, the RO denied the claim for entitlement to service connection for depression now claimed as a psychiatric disability. 2. The evidence received since the May 2001 is new, but does not raise a reasonable possibility of substantiating the underlying claim for service connection for a psychiatric disability to include depression, and is not material evidence. CONCLUSIONS OF LAW 1. A May 2001 RO rating decision that denied service connection for depression now claimed as a psychiatric disability is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2012). 2. The criteria to reopen a claim of entitlement to service connection for a psychiatric disability to include depression have not been met. 38 U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA With respect to the Veteran's claims decided herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all three elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was provided general notice concerning the criteria for service connection in a September 2009 letter. Moreover, the letter advised him of the criteria to reopen claims based on the submission of new and material evidence. He was also advised, generally, of the basis of the prior denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (the law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial). The Board also concludes VA's duty to assist has been satisfied. Identified VA disability determination records have been obtained. In addition, the RO has obtained service personnel and service treatment records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Here, the Veteran has not been afforded a VA examination in connection with the claim to reopen. However, as it pertains to the claim for psychiatric disability to include depression, the Board finds, herein, that new and material evidence has not been received, and that the evidence does not indicate either diagnosis of a psychiatric disability in active service or any relationship between the current disability and a psychiatric disability incurred during the Veteran's active duty service. Hence, a remand for an examination and or opinion is not necessary to decide these claims. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of unsubstantiated lay allegations establishing the required association between this current disability and service.) 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 with respect to the issues addressed herein, the Board finds that any such failure is harmless. See Mayfield, supra. New and Material Evidence Claim In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 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. For claims such as these, new evidence means existing 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. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Specific chronic diseases, including arthritis and organic diseases of the nervous system may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). Additionally, one way of establishing the nexus element for these specified chronic diseases, listed in 38 C.F.R. § 3.309, is through evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2013); see also Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The Board notes that psychiatric disabilities are not listed as chronic diseases for purposes of 38 C.F.R. 3.309, and thus, the Veteran cannot utilize the continuity of symptomatology theory referred to in 38 C.F.R. § 3.303(b). Id. In general, a Veteran is competent to provide lay statements of observable symptoms of disability and continuity of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The value of lay statements of symptoms and continuity of symptomatology, as with any evidence, depends in part on whether it is credible; the mere absence of corroborating contemporaneous medical evidence does not render the statements incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2008). Here, in a May 2001 rating decision, the RO denied the Veteran claim of entitlement to service connection for depression. As to the claim, the RO found that the service treatment records did not show a diagnosis of or treatment for depression in active service, and although the Veteran's showed treatment for depression at the time, the Veteran did not reply to the request for medical evidence showing treatment for depression from the time of his discharge to the time of the May 2001 RO rating decision. Evidence before the RO at the time of May 2001 rating decision included the Veteran's service treatment records and VA outpatient treatment records. The Veteran's service treatment records reveal a note from an aid station in September 1979 which reports the Veteran was having "...sleeping problem[s]. & is having family problems and family is in U.S. & wants to [d]iscuss it with Dr. due to personal reasons..." Additionally, the RO refers to a June 2000 VA treatment note where a VA psychiatrist states the Veteran is "... [b]eing treated for chronic depression. Denies current hallucination. Denies current suicidal thoughts. Denies any current drug or alcohol usage. Mood is moderately depressed ..." The Veteran was notified of the May 2001 rating decision but did not initiate an appeal. As such, the rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103. Moreover, in the one-year period following the rating decision, no evidence, let alone any new and material evidence, was received relating to this claimed disability that would require the RO to review the decision. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011)(holding that VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.) In September 2010, the Veteran filed a claim for entitlement to service connection for a psychiatric disorder that the RO classified as a claim to reopen his previously denied claim for entitlement to service connection for depression. Evidence received since the May 2001 RO rating decision includes VA record printed in 2009 which lists the Veteran's problems, a statement in support of his claim by his mother, a statement in support of the claim by the Veteran, and service treatment records from his National Guard service following his May 1980 discharge from active duty. The Board will address each of these new pieces of evidence in turn. The new VA record printed in September 2009 is a problem list which indicates the Veteran suffered from a brief depressive reaction in July 1994 and currently suffers from a mood disorder. While this evidence shows that the Veteran has been diagnosed with a psychiatric disorder to include depression, the Board observes that the RO has previously reviewed similar evidence of a current psychiatric disorder (the Veteran's June 2000 VA treatment note) in the May 2001 RO rating decision. This evidence is thus redundant of evidence the RO had received. Moreover, the problem list does not relate to an unestablished fact because it does not describe any relationship between these psychiatric disabilities and the Veteran's service. As such, the evidence is not new and material and does not require that the VA reopen the finally denied claim. The Board will now address the statement of the Veteran and then his mother in turn. The mother's statement received in November 2009 states: ... When Craig went into [the] US Army he was in good health and was not under no Doctor: When he came home he went in [the] National Guard while in [the] National Guard he started feeling sick having stomach trouble and headache[s] that [is] when he start[ed] taking medicine after going to [the] VA hospital: but before that he was doing fine. This start[ed] after he came home from the service and he has been having health problem ever since. But before that his health was fine. The Veteran's statement received on November 2009 states: My psychological problem that started while I was in the US Army in 1978 or 1979 I was treated for this condition at FT Sill OK and I was told that I was crazy at that time. I also had treatment at the military clinic at Ascheffenberg Germany I feel that this condition is directly related to my years in the military on the USEUER boxing team and receiving numerous hits to the head. The Board has discerned that the mother's statement does not relate to an unestablished fact. In her statement, the mother does not relate any mental health issue to the Veteran's service, but instead, focuses on the Veteran's stomach trouble and headaches. Therefore, the Board finds the mother's statement does not relate to an unestablished fact and therefore, is not material. Now addressing the Veteran's statement, the Board emphasizes that the Veteran's contention about the relationship between his service and current psychiatric disability was raised in the Veteran's letter to the VA received in September 2000: "...I was treated for chr[onic] depression while I was at both Ft. Leonard Wood M[O] and Ft. Sill OK while I was in the military I have been receiving treat[ment] [at the] JC VAMC St. Louis M[O] since discharge from the military." The Veteran also lists "[A]shfenberg, Germany" in his initial application for VA benefits September 2009. The Board reiterates that there is no evidence of a mental health issue in the Veteran's service treatment records. As such, the Veteran argument is redundant of the contentions he first made before the RO and was adjudicated in his May 2001 rating decision. Therefore, the Board finds this contention is not related to an unestablished fact, and therefore, is not material. Now, turning to the service treatment records from the Veteran's National Guard service following his May 1980 discharge from active duty, the Board has thoroughly reviewed these service treatment records, and has found that these records are copies of the Veteran's service treatment records already reviewed in the May 2001 RO rating decision. As such they are neither new nor material as they do not relate to an unestablished fact. Finally, in a recent case, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. Unlike Shade, the Board has not failed to properly apply 38 C.F.R. § 3.156(a) to the evidence presented in the current claims to reopen. Here, as noted in detail above, new evidence of record has not been found to be material because such evidence is cumulative or redundant of evidence previously submitted, or does not otherwise relate to an unestablished fact necessary to substantiate the claim. When considering newly submitted evidence in conjunction with the evidence previously of record, the Board has not required the Veteran to submit evidence as to each previously unproven element of his claims. Moreover, the evidence supporting the Veteran's claims is insufficient to trigger the duty to assist under VCAA. ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs