Citation Nr: 1340384 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-33 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether there is new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder, other than PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In connection with his claims, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge in August 2013. A copy of the transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a statement received on August 8, 2013, at the Veteran's travel Board hearing and submitted prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to entitlement to service connection for PTSD. 2. In a prior final July 2010 decision, the Board determined that the Veteran did not have a psychiatric disorder that was a result of disease or injury incurred in or aggravated by his military service. 3. The Veteran filed a petition to reopen this claim in December 2010. However, the additional evidence received since that July 2010 Board decision is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for PTSD are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The July 2010 Board decision that denied the prior claim of entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 3. New and material evidence has not been received to reopen the claim for service connection for an acquired psychiatric disorder, other than PTSD. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist 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) (2013). 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). To reopen a previously denied claim, this VCAA notice must: (1) notify the Veteran of the evidence and information necessary to reopen the claim (i.e., by describing what is meant by new and material evidence); (2) identify what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial of the claim on the merits; and (3) provide general VCAA notice for the underlying service connection claim that complies with 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and any applicable legal precedent. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran was notified of these requirements in January 2011, prior to the August 2011 denial of his petition to reopen. Also in this January 2011 letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim of service connection. The notice letter also provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Relevant to the duty to assist, the Board notes that the RO attempted to obtain the Veteran's service treatment records (STRs); however, the National Personnel Records Center (NPRC) reported that the records were likely destroyed in a fire at the NPRC and could not be reconstructed. The Veteran was previously notified in July 2006 that his STRs and personnel records were not available for review. However, his post-service VA and private treatment records through January 2010 have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In February 2011, the RO arranged for a VA compensation examination to help determine whether the Veteran's claimed psychiatric disorders were incurred in military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record reflects that the examiner reviewed the claims file and the circumstances surrounding the Veteran's military service. In addition, the examination report shows that the examiner considered the contentions of the Veteran, and supported his medical conclusion with data and a rationale. For these reasons, the Board finds that the VA examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has been afforded a hearing before the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the 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, during the hearing, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to notify and to assist. II. Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a statement dated August 8, 2013, and received by the Board that day, the Veteran indicated that he wished to withdraw from appellate consideration his appeal as to entitlement to service connection for PTSD. The Board finds that the Veteran's written statement indicating his intention to withdraw this claim on appeal satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal concerning entitlement to service connection for PTSD, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim on appeal and it is dismissed. III. New and Material Evidence The RO first considered and denied this claim in an October 2008 rating decision. The RO denied this claim because there was no evidence the Veteran's diagnosed anxiety and depression were the result of his military service. The RO sent the Veteran a letter notifying him of that decision and apprising him of his procedural and appellate rights in the event he elected to appeal. He filed a notice of disagreement (NOD) to initiate an appeal, and perfected his appeal to the Board in September 2009. In a July 2010 decision, the Board also determined that the Veteran's psychiatric disorder was not attributable to his military service. This July 2010 Board decision subsumed the October 2008 RO decision. At the time of the July 2010 Board denial, the Veteran stated he had been involved in combat in Korea and saw horrible things. An April 2006 stressors statement indicated he was under a lot of stress just by being in a combat zone. The Veteran gave his unit as the 40th Division, 160th Regiment. The Veteran further stated he could have been killed by the enemy, especially snipers, at any time. He said there were a number of instances where he was on alert with the probability of enemy action. He said his anxiety was enormous and that he felt it since service to the present time. The Veteran also said there were no specific incidents but the continuous threat of death or injury caused him great fear and stress. Finally, he said he witnessed the aftermath of deadly incidences but the bodies had been removed by the time he was on scene. He said that he saw the destruction of the military equipment involved. Additional evidence of record included a June 2005 VA examination which noted that the Veteran denied generalized anxiety and denied having ongoing physical symptoms of anxiety. The only Axis I diagnosis provided was primary insomnia. Private treatment records from East Metro Family Practice, for the period from August 2002 to August 2005, indicated there was no treatment for any psychiatric disorder, to include past or present. A June 2008 private psychological evaluation from ASC Psychological Center provided a detailed review of the Veteran's service. The private examiner provided an Axis I diagnosis of anxiety disorder, not otherwise specified (NOS), with mixed anxiety and depression. However, this examiner did not provide a direct nexus between the diagnosis and the Veteran's military service. A December 2008 amended report from ASC Psychological Center was submitted, indicated that the Veteran's anxiety disorder had many symptoms of PTSD and was clearly the result of the Veteran's experiences in combat duty in the Korean War zone. An April 2010 VA examination provided an Axis I diagnosis of primary insomnia, but the examiner determined the Veteran does not have anxiety. Specifically, the examiner stated that in order to diagnose a person with a mental health condition, there has to be some evidence of significant emotional distress or occupational/ social impairment, which the Veteran does not exhibit. The VA examiner also noted the Veteran never sought treatment for a psychiatric disorder. The Board found that, although a private psychologist stated the Veteran has an anxiety disorder that is secondary to combat experiences, combat service was not shown because the Veteran served in Korea after the July 1953 cease-fire. Therefore, because the private psychologist thought the Veteran had been in combat in a war zone, and concluded that the diagnosed anxiety disorder was the result of combat experiences, this was based on an inaccurate premise. As such, the Board accorded greater evidentiary weight to the VA examiner's diagnosis and opinion against the claim. This July 2010 Board decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the July 2010 Board decision, additional VA treatment records dated through January 2010 have been associated with the Veteran's claims file. The only indication of any psychiatric disorder is a positive screen for depression, a diagnosis which was already of record in the findings of the June 2008 private psychological evaluation. However, there are no additional treatment records indicating the Veteran sought mental health treatment. The Veteran also underwent a VA compensation examination in February 2011. This VA examiner reviewed the claims file and conducted an interview of the Veteran. Following a mental status examination, the examiner determined the Veteran did not have an Axis I diagnosis. The examiner stated that clinical interview findings and test results were not consistent with a diagnosis of anxiety or depression, or any other psychiatric disorder. The examiner concluded that the Veteran's mild distress and avoidance related to memories of his experiences in Korea have not had any detrimental impact on occupational, social, and other important areas of functioning. The Veteran also presented testimony in support of his claim in the August 2013 travel Board hearing. However, his testimony was a recitation of the stressful events he stated occurred while he was stationed in Korea and during his military service as a whole, which has been previously recounted. So this evidence is not new. While the additional VA outpatient treatment records and February 2011 VA examination are new in the sense they did not exist at the time of the July 2010 Board decision, as a whole they are not material to the central issue. In fact, this additional evidence now shows the Veteran does not even have a diagnosis of a psychiatric disorder. This additional medical evidence does not add anything to the element found lacking at the time of the prior determination, i.e., that a psychiatric disorder is attributable to the Veteran's military service. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Further, the Board notes that additional evidence, which consists of records of post-service treatment that does not indicate that a condition is service-connected, is not new and material. See Cox v. Brown, 5 Vet. App. 95, 99 (1993); see also Morton v. Principi, 3 Vet. App. 508, 509 (1992) (Observing that evidence of the appellant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). As such, none of the additional evidence submitted or otherwise obtained since the prior final and binding July 2010 Board decision addresses the essential element of service connection that was missing when the Board previously considered and denied the claim in that earlier decision. Thus, there is no new and material evidence to reopen the claim and the petition must be denied. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the- doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). (CONTINUED ON NEXT PAGE) ORDER The appeal as to the claim of entitlement to service connection for PTSD is dismissed. New and material evidence having not been submitted, service connection for an acquired psychiatric disorder, other than PTSD, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs