Citation Nr: 1335152 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-30 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1966 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Huntington, West Virginia. During the course of the appeal, the claims file was permanently transferred to the RO in Newark, New Jersey which now has jurisdiction over the claim on appeal. In a February 2007 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran did not perfect an appeal of the February 2007 rating decision and in a July 2010 statement, the Veteran's representative reported the Veteran is not pursuing the claim for PTSD; therefore, the issue of PTSD is not for appellate consideration. As a result, in light of the evidence of record and the decision in Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009), the Board has characterized the issue on appeal and listed it on the title page as whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. In December 2011, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Newark, New Jersey. A copy of the transcript is of record. The Board remanded this claim in July 2012 for additional development. The agency of original jurisdiction (AOJ) was requested to obtain additional VA treatment records from the VA medical facility in East Orange, New Jersey. Such records have been obtained and associated with the claims file in the Virtual VA paperless claims processing system (Virtual VA). These documents have been noted and reviewed by the Board. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). When the Veteran's claim was initially presented to the Board, he was represented by a veterans service organization (VSO) which he had previously appointed as his accredited representative. In a February 2013 written statement, however, he suggested a desire to discontinue representation by this VSO. He was sent a July 2013 letter by VA to clarify his intent. In his August 2013 response, he stated he wished to continue to receive representation by this VSO. Also in February 2013 and again in August 2013, subsequent to the most recent supplemental statement of the case, the Veteran submitted a packet of additional contentions and other records. Review of this evidence indicates it is duplicative of records already received and reviewed by the AOJ. Likewise, his contentions are repetitive of prior contentions. Therefore, remand for AOJ consideration is not required, and would only needlessly delay the appellant's claim. See Vogan v. Shinseki, 24 Vet. App. 159, 167 (2010). Within his August 2013 letter, the Veteran also requested a second personal hearing before a Veterans Law Judge. As noted above, the Veteran was previously afforded a December 2011 personal hearing before a Veterans Law Judge seated in Newark, New Jersey. He contends his representative repeatedly interrupted him during his hearing, preventing the Veteran from "expressing himself fully" before the Board. Pertinent VA law and regulations provide that a claimant has a right to a hearing before a Veterans Law Judge, indicating a right to a single hearing. See 38 U.S.C.A. § 7107; 38 C.F.R. §§ 20.700 et seq. If a hearing tape or transcript is lost, the appellant may make a motion for a new hearing, 38 C.F.R. § 20.717. The pertinent regulations do not otherwise provide for, or require the Board to grant, a request for an additional hearing. In the present case, a full transcript of the Veteran's December 2011 hearing is of record, and he has not alleged that any portion of the transcript is missing or unavailable. The appellant subsequently submitted additional argument in support of his claim. Therefore the Board finds that the Veteran is not entitled to another hearing on this issue. FINDINGS OF FACT 1. In an October 1997 rating decision, the RO denied service connection for depression, claimed as emotional breakdown. The Veteran was notified of this decision that same month and did not file a timely appeal to this decision. 2. The evidence associated with the claims file subsequent to the October 1997 rating decision does not relate to an unestablished fact necessary to substantiate service connection for a psychiatric disorder, as it is cumulative or redundant of evidence already of record. CONCLUSIONS OF LAW 1. The October 1997 rating decision that denied service connection for depression is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.160(d) (1997). 2. The criteria for reopening service connection for a psychiatric disorder are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under the VCAA. In an August 2007 letter, the appellant was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the letter provided him with the general criteria for the assignment of an effective date and initial rating. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally, initial VCAA notice was provided the appellant prior to the rating determination on appeal; therefore, no timing issue exists with regard to the notice provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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) held that, in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. In the present case, the aforementioned August 2007 letter noted the basis for the prior denial, as well as the evidence required to substantiate the element or elements needed for service connection. No further evidence in this regard is required. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the claims files. The RO has obtained VA and non-VA medical records. The RO has not arranged for a VA medical opinion because such a duty does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). VA has also obtained Social Security Administration records associated with a Veteran's claim for Social Security Disability benefits. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The Board is not aware, and the appellant has not suggested the existence of, any additional pertinent evidence not yet received. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with this regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge chairing the December 2011 hearing noted the issue on appeal, the evidence necessary to substantiate the claim and sought information to determine whether all relevant records had been identified and obtained. The Veteran indicated that he was getting additional VA treatment and the record was held open for a period of 60 days to allow him and his representative to submit evidence. Additional VA treatment records were added to the record. Moreover, the Veteran demonstrated actual knowledge of this information, as he specifically addressed evidence in support of his claims, indicating an understanding of requirements to establish the benefit sought on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) The Board finds that the duties imposed by 38 C.F.R. § 3.103 as interpreted in Bryant have been met. Reopening of Service Connection for a Psychiatric Disorder In the current claim on appeal, the Veteran seeks to reopen service connection for a psychiatric disorder other than PTSD. In an October 1997 rating decision, service connection for depression was denied. The RO found that while the Veteran was seen for psychiatric symptoms during service, he was diagnosed with an emotionally unstable personality, chronic, severe, and was found not suitable for retention in service. He was not diagnosed with a current psychiatric disorder at any time during service. The RO noted that the Veteran had a current diagnosis of depression, diagnosed on VA examination in August 1997. Based on this evidence, the RO concluded service connection for depression was not warranted, as onset of depression during service was not demonstrated. The Veteran was sent an October 1997 letter informing him of this determination, and did not initiate an appeal, or submit any new and material evidence prior to the expiration of the appeal period; his claim therefore became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.1103 (2012). Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, 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 generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 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 this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). As noted above, in the October 1997 rating decision, the RO determined that the evidence then of record did not reflect in-service onset of depression or any other psychiatric disorder for which service connection could be awarded. The evidence considered at that time included service treatment records as well as an August 1997 VA medical examination. On VA examination on that date, the examiner diagnosed depression and pedophilia. Evidence received since the October 1997 rating decision includes voluminous VA, Social Security Administration (SSA), and private medical treatment records, both within the physical claims file and Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the issue on appeal. Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128- 30 (2000). VA medical treatment records dated from 1998 have been received since the October 1997 rating decision. These records are new in that they were not of record at the time of the final prior denial, but they are not material, as they are cumulative and redundant of evidence already of record. This is because the post-1997 VA treatment records merely confirm current diagnoses of a psychiatric disorder, variably diagnosed as depression, adjustment disorder, anxiety, and possible schizophrenia. A current psychiatric disorder, diagnosed as depression, was of record and acknowledged by VA at the time of the October 1997 denial. Thus, in establishing a fact already established within the prior final decision, the additional VA medical treatment records are cumulative of evidence already received. Likewise, the additional VA medical treatment records are not material, as they do not, by themselves or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. As noted above, these records merely confirm a current psychiatric disorder, a fact previously established and explicitly noted within the October 1997 VA rating decision. As such, these records are not material. Similarly, the additional SSA and private medical treatment records are not new and material. The SSA records received by VA confirm that the Veteran has been awarded Social Security disability benefits effective from 2008 due in part to a current diagnosis of depression. The Board notes that at the time of the October 1997 denial, an August 1997 VA examination had resulted in a diagnosis of depression. The examination report also noted that the Veteran had been treated at a private mental health facility in approximately 1982, at the same time he was facing charges for criminal sexual conduct. The records of the Veteran's 1982 private treatment were not within the claims folder at that time, however. Subsequent to the October 1997 denial, the Veteran has submitted private treatment records establishing private psychiatric care as early as 1978. Initial diagnoses included a schizoid personality, with a prior history of a passive/aggressive personality. In 1982, he was incarcerated for sexual misconduct and was provided psychiatric treatment while in prison. These private and prison treatment records do not, however, indicate onset of a psychiatric disorder during service or for many years thereafter. Thus, while these additional private records establish an earlier date of onset of a current psychiatric disorder, they do not indicate onset was during service, or is otherwise related to any incident of service. Even assuming onset of psychiatric symptoms in 1978, as opposed to 1982 as previously thought, this still represents a 10-plus year gap between service separation and onset of a psychiatric disorder, according to the private treatment records. Therefore, the additional SSA and private medical treatment records are cumulative and redundant of evidence already of record in 1997, and do not relate to an unestablished fact necessary to substantiate the claim; hence, they are not new and material. Finally, the Veteran has submitted his own statements, both in writing and at his December 2011 Board hearing, in support of his application to reopen his service connection claim. The Veteran contends in essence that the mistreatment he received in service at the hands of his superiors and by fellow trainees resulted in his current depression and anxiety. As noted above, for purposes of determining whether additional evidence is new and material, the credibility of the evidence is presumed. Justus, 3 Vet. App. at 512-513. Nevertheless, these accounts of the Veteran's in-service harassment are not new and material evidence, as they are duplicative of assertions made at the time of the 1997 denial. Additionally, the Veteran's assertions do not address the prior finding in October 1997 that a psychiatric disorder was not incurred in service. VA acknowledged in 1997 that the Veteran had been afforded a mental status examination in service in February 1967, and a psychiatric disorder was not found at that time. While a personality disorder was diagnosed in 1967, a personality disorder is not a disability for which service connection may be awarded. 38 C.F.R. § 3.303(c). Even if the Veteran's reported harassment is acknowledged as true, this account does not relate to an unestablished fact necessary to substantiate the claim and is not new and material evidence. As a layperson, the Veteran is competent to report observable symptomatology, to include psychiatric symptoms. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). His lay assertions on in-service incurrence of a psychiatric disorder, however, were previously considered by VA at the time of the October 1997 denial, and his assertions therefore are cumulative and redundant of evidence previously considered, and not new and material evidence. The Veteran having failed to submit new and material evidence, his application to reopen his service connection claim for a psychiatric disorder other than PTSD is denied. ORDER Reopening of service connection for a psychiatric disorder other than PTSD is denied. ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs