Citation Nr: 1335148 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-16 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of service connection for a psychiatric disorder. 2. Whether new and material evidence has been received sufficient to reopen a previously denied claim of service connection for a back disorder, to include as secondary to service-connected right leg scar. 3. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a stomach disorder, to include as secondary to a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In January 2010 and July 2012, the Board remanded this matter for further development. Specifically, the Board found that insufficient notice had been provided to the Veteran and remanded the matter to correct this error. This development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for fibrosis of the skin and for a liver condition have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In a November 2002 rating decision, the RO denied a request to reopen a previously denied claim for service connection for a psychiatric disorder. Although provided notice of this decision, the Veteran did not perfect an appeal thereof. 2. Evidence added to the record since November 2002 concerning the Veteran's psychiatric disorder does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 3. In a November 2002 rating decision, the RO denied a request to reopen a previously denied claim for service connection for a back disorder. Although provided notice of this decision, the Veteran did not perfect an appeal thereof. 4. Evidence added to the record since November 2002 concerning the Veteran's back disorder does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. 5. In an October 1999 rating decision, the RO denied a request to reopen a previously denied claim for service connection for a stomach disorder. Although provided notice of this decision, the Veteran did not perfect an appeal thereof. 6. Evidence added to the record since October 1999 concerning the Veteran's stomach disorder does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. As new and material evidence has not been received since the last final decision, the criteria for reopening the claim for service connection for a psychiatric disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. As new and material evidence has not been received since the last final decision, the criteria for reopening the claim for service connection for a back disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. As new and material evidence has not been received since the last final decision, the criteria for reopening the claim for service connection for a stomach disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a 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, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided notice to the Veteran in May 2005 and July 2012 regarding what information and evidence is needed to substantiate his claims for service connection, to include the need to submit new and material evidence to reopen the claims for service connection for a psychiatric disorder, back disorder and stomach disorder, as well as advising the Veteran of the basis for the prior denial for each of the claimed disorders. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The letters also advised as to what information and evidence must be submitted by the Veteran, and the types of evidence that will be obtained by VA. Moreover, the letters advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. While the July 2012 letter was not provided to the Veteran prior to the initial adjudication of the claims for service connection for a psychiatric disorder and back disorder, the Veteran was given time to submit additional evidence and argument and the matter was readjudicated in a January 2013 Supplemental Statement of the Case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include service treatment records, private medical records and VA examination reports. Moreover, numerous private medical records were translated from Spanish to English. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). New and Material Evidence The Veteran is seeking service connection for a psychiatric disorder, back disorder and a stomach disorder. As will be discussed below, these claims have been previously denied. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The Board must therefore proceed to analyze whether new and material evidence has been submitted since the prior final decisions. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). New evidence is defined as 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). Specifically, with reference to the back disorder claim, the previous rating decision denied service connection for the disorder on a direct basis. The Veteran is now claiming that the back disorder is secondary to the service-connected right leg scar (which is the result of an in-service automobile accident). The Board observes a new etiological theory for service connection does not constitute a new claim. See Ashford v. Brown, 10 Vet. App. 120, 123 (1997). New and material evidence is still required to the reopen the previously denied back disorder claim. Psychiatric Disorder A claim for a psychiatric disorder was initially denied by the RO in September 1968 because the evidence did not show that the Veteran had a psychiatric disorder that was related to service. The Veteran did not perfect an appeal thereof. Thus, the September 1968 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2013). In an April 1989 decision, the Board determined that clear and umistakable error (CUE) was not found in the prior RO decision dated in September 1968 that had denied service connection for a psychiatric disorder. In April 1998, June 1998 and November 2002 rating decisions, the RO declined to reopen the Veteran's claim because the Veteran had not submitted new and material evidence that a psychiatric disorder was related to service. The Veteran did not perfect an appeal with respect to the April 1998, June 1998 or November 2002 rating decisions and those rating decisions are also final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The evidence of record at the time of the November 2002 rating decision included service treatment records, VA examination reports dated in October 1977, August 1978, October 1979, July 1983 and December 1987 and private treatment reports. The service treatment records are negative for complaints or treatment of a psychiatric disorder. The VA examination reports and private treatment reports showed various diagnoses of psychiatric disorders to include depressive neurosis, schizophrenia, dysthymic disorder, depressive reaction, passive-aggressive personality and major depression with psychosis. The claim was repeatedly denied because there was no evidence of an etiological relationship between any current psychiatric disability and active service. In February 2005, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a psychiatric disorder. In a September 2005 rating decision, the RO denied reopening the Veteran's claim based on a finding that the Veteran did not submit new and material evidence. In October 2005, the Veteran filed a notice of disagreement, and in May 2006, he perfected his appeal. The subsequently received evidence includes a September 2005 VA examination report in which the examiner concluded that the Veteran's current diagnosis of schizophrenia is not related to his active duty service or secondary to his service-connected right leg scar; private treatment records to include many duplicate records showing diagnoses of various psychiatric disorders; and the Veteran's written statements attesting to suffering from a psychiatric disorder that is related to his active duty service. The newly submitted evidence continues to show diagnoses of psychiatric disorders However, none of the new evidence links a psychiatric disorder to the Veteran's period of active service. The September 2005 VA nexus opinion is against the claim and thus does not constitute new and material evidence. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). The only other evidence in support of the Veteran's claim consists of his statements indicating that a psychiatric disorder is related to his service. In Moray v. Brown, 5 Vet. App. 211 (1993), the United States Court of Appeals for Veterans Claims (Court) noted that lay persons are not competent to offer medical opinions or diagnoses and that such evidence does not provide a basis on which to reopen a claim for service connection. In sum, the evidence submitted by the Veteran raises no reasonable possibility of substantiating the claim for a psychiatric disorder. Thus, it is not material within the meaning of 38 C.F.R. § 3.156(a) and the claim is not reopened. Back Disorder A claim for a back disorder was initially denied by the RO in April 1998 because the evidence did not show that the Veteran had a back disorder that was related to service. The Veteran did not perfect an appeal thereof. Thus, the September 1968 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2013). In a November 2002 rating decision, the RO declined to reopen the Veteran's claim because the Veteran had not submitted new and material evidence that a back disorder was related to service. The Veteran did not perfect an appeal with respect to the November 2002 rating decision and that rating decision is also final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The evidence of record at the time of the November 2002 rating decision included service treatment records, a VA examination report dated in July 1983 and VA treatment records and private treatment records. The service treatment records are negative for complaints or treatment of a back disorder. The VA examination report reflected a diagnosis of degenerative spondylosis of the spine. The VA and private treatment reports reflect the Veteran's complaints of back pain as well as an April 1998 MRI report reflecting minimal central L5-S1 disc protrusion. The claim was denied because there was no evidence of an etiological relationship between any current back disability and active service. In February 2005, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a back disorder. In a September 2005 rating decision, the RO denied reopening the Veteran's claim based on a finding that the Veteran did not submit new and material evidence. In October 2005, the Veteran filed a notice of disagreement, and in May 2006, he perfected his appeal. The subsequently received evidence includes a September 2005 VA examination report in which the examiner concluded that the Veteran's current diagnoses of lumbar strain, thoracolumbar degenerative joint disease and multilevel lumbar central canal stenosis with discogenic degenerative changes were not caused by or related to his service-connected right leg scar; private treatment records showing diagnoses of lumbosacral pain; and the Veteran's written statements attesting to suffering from a back disorder that is secondary to his service-connected right leg scar. The newly submitted evidence shows that the Veteran suffers from back disabilities. However, none of the new evidence links a back disability to the Veteran's period of active service or the service-connected right leg scar. Although the September 2005 VA examination report is new, the examiner's opinion is unfavorable to the back disorder claim and thus does not provide a basis for reopening. See Villalobos, supra. Regarding the Veteran's statements, the Board notes that the Veteran is not shown to possess the appropriate medical expertise and training to competently offer an opinion as to whether any current back disability is related to service or a service-connected disability. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). For these reasons, unsupported statements, even if new, do not serve as a predicate to reopen a previously disallowed claim under the facts of this case. See Mora, supra. In sum, the evidence submitted by the Veteran raises no reasonable possibility of substantiating the claim for a back disorder. Thus, it is not material within the meaning of 38 C.F.R. § 3.156(a) and the claim is not reopened. Stomach Disorder A claim for a stomach disorder was initially denied by the RO in September 1968 because the evidence did not show that the Veteran had a stomach disorder that was related to service. The Veteran did not perfect an appeal thereof. Thus, the September 1968 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2013). In June 1998 and October 1999 rating decision, the RO declined to reopen the Veteran's claim because the Veteran had not submitted new and material evidence that a stomach disorder was related to service. The Veteran did not perfect an appeal with respect to the June 1998 or October 1999 rating decision and those rating decisions are also final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The evidence of record at the time of the October 1999 rating decision included service treatment records, a VA examination report dated in April 1968 and VA treatment records and private treatment records. The service treatment records are negative for complaints or treatment of a stomach disorder. The April 1968 VA examination report reflected a diagnosis of psychophysiological gastrointestinal (GI) reaction. The VA and private treatment reports reflect the Veteran's treatment for abdominal pain syndrome. The claim was denied because there was no evidence of an etiological relationship between any current stomach disability and active service. In February 2005, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a stomach disorder. In a September 2005 rating decision, the RO denied reopening the Veteran's claim based on a finding that the Veteran did not submit new and material evidence. In October 2005, the Veteran filed a notice of disagreement, and in May 2006, he perfected his appeal. The subsequently received evidence includes private treatment records which document treatment for gastritis and the Veteran's written statements attesting to suffering from a stomach disorder, to include as secondary to a psychiatric disorder. The newly submitted evidence shows that the Veteran suffers from abdominal pain, paralitic ileus, and gastritis. However, none of the new evidence links a stomach disability to the Veteran's period of active service. Regarding the Veteran's statements, the Board notes that the Veteran is not shown to possess the appropriate medical expertise and training to competently offer an opinion as to whether any current stomach disorder is related to service or a psychiatric disability. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). For these reasons, unsupported statements, even if new, do not serve as a predicate to reopen a previously disallowed claim under the facts of this case. See Mora, supra. In light of the foregoing, the Board finds that the evidence that the Veteran has recently submitted in connection with his appeal is largely cumulative of the information that was previously of record. Therefore, that evidence, while new, does not raise a reasonable possibility of substantiating the Veteran's previously denied claim of entitlement to service connection for a stomach disorder. Moreover, as the Board denied the Veteran's request to reopen a claim of service connection for a psychiatric disorder, it must logically follow that the claim for a stomach disorder secondary to a psychiatric disorder is not warranted. ORDER New and material evidence has not been received to reopen a claim for service connection for a psychiatric disorder, and the appeal is denied. New and material evidence has not been received to reopen a claim for service connection for a back disorder, and the appeal is denied. New and material evidence has not been received to reopen a claim for service connection for a stomach disorder, and the appeal is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs