Citation Nr: 1338987 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-23 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for polysubstance use in partial sustained remission, generalized anxiety disorder and depressive disorder, not otherwise specified. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2004 to July 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In addition to the issue stated above, the Board notes that the Veteran also perfected an appeal as to the issue of entitlement to nonservice-connected VA pension. In a June 2013 rating decision, the RO granted entitlement to that benefit, and the record does not reflect that the Veteran has challenged any aspect of that decision to date. Accordingly, this issue is no longer in appellate status. The Virtual VA and VBMS electronic claims files have been reviewed, and relevant considerations for this decision are discussed below. FINDINGS OF FACT 1. In a July 2010 rating decision, the RO denied the Veteran's claim of entitlement to service connection for polysubstance use in partial sustained remission, generalized anxiety disorder and depressive disorder, not otherwise specified, among other things. The Veteran was notified of this decision that same month and did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the July 2010 rating decision, by itself, or in conjunction with previously considered evidence, is either cumulative or redundant of evidence previously of record or does not relate to an unestablished fact necessary to substantiate the underlying service connection claim. CONCLUSIONS OF LAW 1. The July 2010 rating decision, which denied service connection for polysubstance use in partial sustained remission, generalized anxiety disorder and depressive disorder, not otherwise specified, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012). 2. The evidence received since the July 2010 rating decision is not new and material, and reopening of this claim is therefore not warranted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the notice requirements apply to all 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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Specific to requests to reopen, a claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the Veteran was provided adequate VCAA notice in a November 2011 pre-rating letter, to include an explanation of the reasons for the prior denial, the criteria for establishing new and material evidence and service connection, the division of responsibilities in obtaining evidence, and an explanation of how disability ratings and effective dates are determined. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment and personnel records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. The record also includes written statements provided by the Veteran and his representative. The Board also notes that the duty to assist does not arise until new and material evidence sufficient to reopen the claim has been received. Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003) ("[I]n the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion."); Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). Nevertheless, the RO obtained an addendum medical opinion in August 2012, in addition to the March 2010 VA examination and opinion by the same VA examiner, to account for the fact that the examiner did not have access to the claims file during the initial examination. The Board finds that the VA examination report and addendum opinion in this case are adequate, as the examination was conducted by a medical professional who solicited history from the Veteran and performed a through examination; the August 2012 opinion is also predicated on a review of the claims file. The examiner also provided a complete rationale for the opinion stated. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A review of the Virtual VA and VBMS electronic claims files reveals evidence of the Veteran's ongoing VA mental health treatment (Virtual VA), to include records for the time period after the RO's review for the August 2012 statement of the case. These records were considered by the RO in relation to the Veteran's nonservice-connected VA pension claim discussed above. On review, this evidence shows that the Veteran continued to receive mental health treatment for depression and anxiety, as well as his polysubstance abuse in varying levels of remission, facts that were previously established in other treatment records reviewed in connection with the claim decided herein. Moreover, these additional records do not suggest a link between the current disorders and service, so as to support reopening the claim, as discussed in greater detail below. As such, the Board finds that this additional evidence is not pertinent to the issue on appeal (i.e., does not have a bearing on the outcome of the appellate issue), and therefore, remand for initial RO review of this evidence in relation to this claim is not necessary. 38 C.F.R. §§ 19.37, 20.1304(c). Based on the foregoing, the Board finds that VA has complied with the VCAA notification and assistance requirements; all necessary development has been accomplished, and there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301; 38 C.F.R. § 3.1(m), (n). Although service connection may be granted for an alcohol or drug-related disorder where it is shown to be secondary to a service-connected disorder, service connection may not be granted for a primary alcohol or drug-related disorder. 38 C.F.R. § 3.310(a); Allen v. Principi, 237 F.3d 1368, 1370 (Fed. Cir. 2001). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises 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). 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). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. According to the plain language of 38 C.F.R. § 3.156(a), however, 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 to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, 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(b). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous denial and evidence submitted thereafter. Evans, 9 Vet. App. at 285-86. In this case, the Veteran essentially contends that he is entitled to service connection for his anxiety and depression disorders "regardless of polysubstance abuse," and that his ongoing VA treatment records constitute new and material evidence to reopen the underlying claim for service connection. See September 2011 application to reopen; August 2012 substantive appeal (VA Form 9). In a July 2010 rating decision, the RO denied the Veteran's claim of entitlement to service connection for polysubstance use in partial sustained remission, generalized anxiety disorder and depressive disorder, not otherwise specified. The RO based this determination of the lack of evidence of a link between the Veteran's current disorders and service, to include consideration of the March 2010 VA examination report in which the examiner determined that the Veteran's current psychiatric symptoms related to anxiety and depression were due to his long-standing substance abuse problems and not reflective of a separate diagnosis. Parenthetically, the Board notes that this examiner considered the Veteran's VA treatment records at that time, as she cited to various records in rendering her original opinion. The Veteran was notified of this decision, but he did not appeal it or submit new and material evidence within the one-year appeal period. Therefore, this decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence of record in July 2010 consisted of the Veteran's service treatment records, which show that he self-reported to the substance abuse rehabilitation clinic in April 2007 for screening. Following examination, he was given multiple substance use diagnoses (both drug and alcohol) and recommended for treatment, including with the Substance Abuse Rehabilitation Program (SARP). During the Veteran's May 2007 service separation examination, he reported a history of depression or excessive worry, nervous trouble of any sort (anxiety or panic attacks), and counseling, in addition to a reported history of use of illegal drugs or abuse of prescription drugs. Prior to this time, he routinely denied a history of mental health symptoms or treatment. See, e.g., September 2003 and June 2004 reports of medical history; September and December 2005 post- and pre-deployment health assessments, respectively; May 2007 SARP screening evaluation (denying current medical problems). The separation examiner noted that the Veteran currently complained of "worrying a lot," but that he did not seek treatment; it was noted that there was no history of counseling except for the May 2007 SARP screening evaluation. Thereafter, the Veteran underwent treatment through the SARP at the Naval Medical Center from June 2007 until immediately prior to his service discharge in July 2007. The July 2007 summary of treatment continued to show multiple substance use diagnoses, with a reported history of drug and alcohol use, including prior to and during service. In addition, the record contained the Veteran's DD Form 214, which shows that he received a general discharge under honorable conditions, due to misconduct. The noted separation authority includes MILPERSMAN 1910-146 for separation by reason of misconduct - drug abuse. The Board notes that the Veteran does not now contend otherwise; he acknowledges that the nature of his discharge was due to substance use. See, e.g., March 2010 VA examination report; March 2011 VA treatment record (noting that Veteran "thinks he 'messed up' his military service, was using illicit [drugs], discharge was general under honorable as he went to rehab."). Finally, the record also contained VA treatment records showing ongoing VA treatment beginning in January 2009 for various medical conditions, including mental health treatment for anxiety and depression disorders, the Veteran's statement as part of his original claim that his anxiety and depression began in 2006, and the March 2010 VA examination report, as discussed above. The evidence received since July 2010 consists of ongoing VA treatment, an August 2012 VA addendum opinion, and the Veteran's statements. The evidence added to the record does not include any non-cumulative evidence that relates to unestablished facts necessary to establish the claim - the presence of a causal relationship between the present condition and service. For example, the Veteran has continued to submit assertions, the substance of which were previously of record, that his depression and anxiety, to include any various diagnoses thereof, are related to service. Additionally, the VA examiner's August 2012 addendum opinion confirmed her original determination (which was based on review of the Veteran's current VA treatment records, if not the entire claims file), following review of the claims file; thus this opinion also did not provide any non-cumulative evidence. In addition, while the Veteran continued to receive VA treatment, these records do not suggest a link between the Veteran's mental health diagnoses and service other than noting his long-standing history of substance use, nor do they suggest that the Veteran's substance abuse problems were the result of mental health problems directly incurred or aggravated in service; regardless, these records are essentially cumulative or redundant of the treatment records previously of record and considered in the July 2010 rating decision. The Veteran has not contended otherwise, aside from his general assertion that service connection should be granted regardless of a polysubstance abuse diagnosis. In other words, this evidence relates to current symptoms and does not show or imply any relationship between those symptoms and the Veteran's service that is separate from the established substance abuse therein, such that the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118 (application of "reasonable possibility portion of [§ ] 3.156(a) cannot impose a greater burden to reopening than imposed by Congress by that language in the VCAA."). Under these circumstances, the Board concludes that such evidence is not new and material within the meaning of the laws and regulations as set forth above, and as such, there is no basis to reopen claim of service connection for polysubstance use in partial sustained remission, generalized anxiety disorder and depressive disorder, not otherwise specified. ORDER New and material evidence not having been submitted, the application to reopen the claim of entitlement to service connection for polysubstance use in partial sustained remission, generalized anxiety disorder and depressive disorder, not otherwise specified is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs