Citation Nr: 1335818 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 12-04 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder, diagnosed as asocial personality disorder. ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The RO determined that new and material evidence had not been received to reopen the Veteran's previously denied claim of service connection for a psychiatric disorder. The Board observes that, in a December 1974 rating decision, the RO denied the Veteran's claim of service connection a psychiatric disorder. The Veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Veteran also did not submit any evidence relevant to this claim within one year of the rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. In December 1974, the RO denied the Veteran's claim of service connection for a mental disability, diagnosed as asocial personality disorder, and the Veteran did not appeal. 2. The evidence received since the December 1974 RO decision is insufficient to reopen the previously denied claim of service connection for a psychiatric disorder because it does not relate to an unestablished fact necessary to substantiate this claim. CONCLUSIONS OF LAW 1. The December 1974 rating decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.302 (2013). 2. Evidence submitted since the December 1974 rating decision in support of the claim of service connection for a psychiatric disorder is not new and material; accordingly the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1) (as amended, effective May 30, 2008). This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Concerning applications to reopen claims that have been the subject of a prior final denial by VA, nothing pertaining to the duty to assist claimants shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(f). To provide adequate notice with regard to a claim to reopen, VA must look at the bases for the denial in the prior decision and respond with a notice letter 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. Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, adequate notice was provided to the Veteran through correspondence in April and August 2009. These letters detailed the elements of a service connection claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such evidence. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be explained below in greater detail, because new and material evidence has not been received to reopen the Veterans claim of service connection for a psychiatric disorder, an examination is not required. In summary, VA has done everything reasonably possible to notify and to assist the Veteran, and no further action is necessary to meet the requirements of the VCAA. II. New and Material Evidence Claim Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) In this case, the Veteran's claim for service connection for a mental disability was previously denied by the RO in a December 1974 rating decision because his condition was classified as asocial personality disorder-a developmental defect, which is not the type of disease-or-injury related defect to which service connection may be granted under VA law. In December 1974, the RO denied the Veteran's claim of service connection for a psychiatric disorder. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013). Although the Veteran was notified of the denial and his appellate rights, he did not initial an appeal of the December 1974 rating decision and it became final. Additionally, he did not submit any evidence or argument within one year of this rating decision that would render it non-final for VA disability compensation purposes. See Buie, 24 Vet. App. at 251-52. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law , "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim for service connection for a mental disability/psychiatric disorder is the RO's December 1974 decision. 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 March 2009, the Veteran filed a VA Form 21-526 to reopen his previously denied service connection claim. With respect to the Veteran's application to reopen a claim of service connection for a psychiatric disorder, the evidence before VA at the time of the prior final RO decision in December 1974 consisted of the Veteran's service treatment records (STRs) and his lay statements. The Veteran's STRs include a May 1963 psychological evaluation performed after the Veteran had admitted to attempting to rape a civilian. The examiner determined that the Veteran had an "asocial (amoral) personality" and recommended an administrative separation from service. A June 1963 examination report indicated that the Veteran had been institutionalized in a psychiatric facility since May 1963, and was diagnosed with asocial personality disorder. An asocial personality disorder diagnosis was also noted on his July 1963 separation examination. The evidence of record in December 1974 also includes the Veteran's November 1974 VA 21-526 form, in which he stated: I am contending that had I received (proper) care for offenses warranting my commitment to [psychiatric] ward, Tripler Gen. Hosp. Honolulu, Hawaii, I would not have committed offenses for which I am currently confined in prison, since commitments were for the same reason. This is a mental-disability claim. The RO found that the Veteran's mental or psychiatric condition was diagnosed as "asocial personality disorder," which is a "[c]onstitutional or developmental abnormality-not a disability under the law." Congenital or developmental defects such as personality disorders are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Thus, the claim was denied. The newly received evidence includes prison records, including a December 2007 therapy termination report, a July 1981 parole violation report, and an April 1970 sex offender examination report. These records describe the Veteran's past criminal activity and state that he has antisocial personality traits. These records confirm that the Veteran has a personality disorder, which was an established fact at the time of the December 1974 rating decision. The Veteran's lay statements submitted since December 1974 are redundant of the evidence of record prior to this date. The Veteran stated in his April 2011 Notice of Disagreement: Instead of tossing me into the "psych-ward" of Tripler Gen. Hospital for a couple of months and then discharging me early from military duty onto an unsuspecting public the army should have been more attentive to the potential problem of the "ticking time bomb" festering within me. This is essentially the same argument that was made in the Veteran's original November 1974 claim. The Veteran did not provide any additional statements regarding an unestablished fact pertaining to his claim. Although some evidence received since December 1974 is new, in that it has not been submitted previously to agency adjudicators, it is cumulative or redundant of the evidence at the time of the prior decision which showed that the Veteran had been diagnosed with a personality disorder. The Board also finds that the evidence received since December 1974 does not relate to an unestablished fact necessary to substantiate the Veteran's claim and does not raise a reasonable possibility of substantiating it. The Board observes in this regard that, in Shade v. Shinseki, 24 Vet. App 110 (2010), the Court held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. In this case, however, there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening the Veteran's previously denied service connection claim for a personality disorder. Unlike in Shade, there is no evidence in this case-either previously considered in the December 1974 rating decision or received since that decision became final-which demonstrates that any psychiatric disability could be attributed to active service. Indeed, as noted, there is no evidence that the Veteran has a psychological disorder that is compensable under VA law. Nor is there any evidence that any currently diagnosed disorder is etiologically related to service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's request to reopen his previously denied service connection claim for a psychiatric disability. In summary, the Board finds that, as new and material evidence has not been received, the previously denied claim of service connection for a psychiatric disability is not reopened. ORDER As new and material evidence has not been received, the previously denied claim of service connection for a psychiatric disorder, diagnosed as asocial personality disorder, is not reopened. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs