Citation Nr: 1342359 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 09-13 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and neurosis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis, of all joints and both hands. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for narcolepsy, claimed as a sleep disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran in September 2011 raised the issue of service connection for polyfibromatosis, but this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Veteran served on active duty from September 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2013, the Veteran's representative confirmed that the Veteran did not want a Board hearing. A review of the Virtual VA paperless claims processing system includes VA treatment records dated from 1995 to 2011 and statement from the Veteran received in June 2011. Other documents are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System does not include any documents. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, to include PTSD, depression, and neurosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a rating decision in June 2004, the RO denied to reopen the claim of service connection for arthritis based on the determination that new and material evidence was not received to reopen the claim. 2. The Veteran did not appeal the June 2004 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for arthritis. 3. The evidence presented since the rating decision by the RO in June 2004 does not relate to an unestablished fact necessary to substantiate the claim of service connection for arthralgia, claimed as arthritis, of all joints and both hands. The evidence submitted is redundant or cumulative. 4. In a rating decision in June 2004, the RO denied the claim of entitlement to service connection for narcolepsy, claimed as a sleep disorder. 5. The Veteran did not appeal the June 2004 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim of service connection for narcolepsy. 6. The evidence presented since the rating decision by the RO in June 2004 does not relate to an unestablished fact necessary to substantiate the claim of service connection for narcolepsy. The evidence submitted is redundant or cumulative. CONCLUSIONS OF LAW 1. The rating decision in June 2004, denying to reopen the claim of entitlement to service connection for arthritis is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2012). 2. The evidence presented since the rating decision by the RO in June 2004, denying to reopen the claim of entitlement to service connection for arthritis, is not new and material and the claim to reopen service connection for arthralgia, claimed as arthritis, of all joints and both hands is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The rating decision in June 2004, denying service connection for narcolepsy, claimed as a sleep disorder, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156 (2012). 4. The evidence presented since the rating decision by the RO in June 2004, denying service connection for narcolepsy, claimed as a sleep disorder, is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in March 2008. The March 2008 VCAA notice included the type of evidence needed to substantiate the underlying claim of service connection, namely, evidence of a current disability; evidence of an injury or disease in service or an event in service, causing or aggravating injury or disease; evidence of a relationship between the current disability and the injury, disease, or event in service. The VCAA notice letter also included the type of evidence needed to reopen the claims of service connection, that is, new and material evidence, namely, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and pertained to the reasons the claims were previously denied. The letter informed the Veteran that his claim of service connection for arthritis was previously denied because there was no evidence showing arthritis in service or within the statutory presumptive period following his discharge from service. The Veteran was advised that his claim for narcolepsy was previously denied because the condition was neither incurred in nor caused by service. The letter stated that the evidence he is to submit relates to the facts his claims were previously denied. The Veteran was notified of the evidence that VA would obtain and the evidence that he could submit. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Kent v. Nicholson, 20 Vet. App. 1 (2006) (new and material evidence necessary to reopen a service connection claim); and of Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006) (disability ratings and the effective date of the claims). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. The Veteran's lay statements, service treatment records, VA medical records, private medical records, and records from the Social Security Administration (SSA) have been associated with the file. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Application to Reopen In June 2004, the RO denied to reopen service connection for arthritis based on the determination that new and material evidence was not received to reopen the claim. In the June 2004 rating decision, the RO also denied the Veteran's claim of service connection for narcolepsy, claimed as a sleep disorder, as the evidence did not show a relationship between narcolepsy, or any other sleep disorder, and service. After the RO notified the Veteran of the adverse determination and of his procedural and appellate rights in June 2004, the Veteran did not initiate an appeal and the June 2004 rating decision became final based on the evidence of record at the time. 38 U.S.C.A. § 7105. Under the provisions of 38 C.F.R. § 3.156(b), new and material evidence received during the appeal period after a decision will serve to preclude that decision from becoming final unless the decision is reconsidered. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that in determining whether a decision became final VA is required to determine whether any evidence received with one year of the decision is new and material and prevented the decision from becoming final under 38 C.F.R. § 3.159(b)). In the instant case new and material evidence was not received within one year of the date the Veteran was notified that his claims were denied. Although the prior rating decision is final, it may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. 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). Regardless of how the RO ruled on the question of reopening, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). Evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). As for the claim to reopen service connection for arthritis/arthralgia, claimed as arthritis, of all joints and both hands, at the time of the June 2004 rating decision the evidence of record consisted of the Veteran's lay statements, service treatment records, and post-service medical records, which are summarized as follows. In a statement received in October 1992 the Veteran claimed that during service he fell and hurt his back. He also contended that he had shoulder pain and wrist pain and his fingers were stiff. In his claim for benefits received in October 1992, the Veteran asserted that he injured his hand in 1965 and that arthritis throughout his body began in 1990. Service treatments records do not document arthritis nor joint pain and on separation examination in July 1965 the Veteran's extremities and spine were evaluated as normal. On VA examination in November 1992, the Veteran had pain in his shoulders, elbows, knees, and hands and the diagnosis was osteoarthritis of multiple joint involvement by history with good grip strength and no deformity of the hands. On a VA general examination that same month he had a diagnosis of osteoarthritis. On a VA examination in January 1993, he had a diagnosis of arthralgia of total body joints. A rating decision in June 1993, denied service connection for arthritis based on the determination that service treatment records did not show arthritis, there was no post-service x-ray evidence of arthritis or treatment for arthritis or evidence documenting arthritis within one year of separation from service, nor was there evidence of a hand injury. Records from the Pennsylvania Bureau of Disability Determination dated in March 1993 and received in February 1997 show generalized osteoarthritis and degenerative arthritis with stiffness in the shoulder, girdle, elbows, wrists, and knees. The examiner noted that no x-rays were performed and it would be appear that the Veteran had early symptoms of arthritic changes. VA x-rays in August 1996 of the lower back show degenerative arthritis changes. SSA records include a September 1986 x-ray which shows a normal right hand. VA records in January 2003 show degenerative joint disease with pain at multiple joint sites. In October 2003, the Veteran filed a claim to reopen service connection for degenerative arthritis in the shoulders, hands, and wrists. The evidence of record since the last prior final denial in June 2004 consists of the Veteran's statements, medical records, and additional SSA records. By way of summary, in November 2007, the Veteran filed a claim to reopen service connection for degenerative arthritis. VA records in March 2007 show degenerative joint disease of multiple joints. VA records printed in July 2008 show that degenerative joint disease was documented in September 2004. VA records in March 2009 and August 2010 document degenerative joint disease. VA records in September 2010 show osteoarthritis of the hands. In November 2010, the records show rheumatoid arthritis. X-rays dated in March 2003 and printed in October 2011 show degenerative changes of the left shoulder and wrists. SSA records received in January 2012 show the Veteran complained of joint pain in October 2003. The SSA records also include a VA x-ray in March 2003 showing degenerative changes of the cervical spine, a VA x-ray in August 1996 showing degenerative arthritis changes, and VA records in May 2003 documenting degenerative joint disease. VA records that were associated with the Virtual VA paperless claims processing system in March 2013 include entries dated in November 2003, March 2007, September 2010 and March 2011 documenting degenerative joint disease. The evidence received since the last rating decision, summarized above, merely confirms that the Veteran has arthritis in various parts of his body and joint pain. The records do not include any additional diagnoses nor evidence relating to the etiology of the Veteran's arthritis and arthralgia. Thus this evidence is cumulative or redundant of the evidence already of record at the time of the last final rating decision June 2004 and does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. The Board therefore concludes that new and material evidence regarding the claim of service connection for arthralgia, claimed as arthritis, of all joints and both hands, has not been received. As for the claim service connection for narcolepsy, claimed as a sleep disorder, at the time of the last final rating decision in June 2004, the evidence of record consisted of the Veteran's lay statements, service treatment records, and private records. Service treatment records do not document narcolepsy or a sleeping disorder and separation examination in July 1965 evaluated the Veteran's neurologic status as normal. A letter from the Veteran's private doctor in November 1992 shows that the Veteran reported an onset of insomnia two to three years earlier. The examiner stated that the Veteran was prescribed medication for symptoms consistent with narcolepsy. In his claim for benefits received in October 2003, the Veteran stated that he had a terrible sleep disorder. The evidence of record since the last prior final denial in June 2004, consists of the Veteran's statements and SSA records. The Veteran in his claim to reopen service connection for narcolepsy received in November 2007 claimed that he had narcolepsy. The Veteran's representative in a brief dated in December 2011 indicated that the Veteran was prescribed medication for his narcolepsy. SSA records received in January 2012 show the Veteran complained of a sleep disorder in October 2003. The evidence received since the last final rating decision in June 2004 shows that the Veteran has narcolepsy and thus is cumulative or redundant of the evidence already of record and does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. The Board therefore concludes that new and material evidence regarding the claim of service connection for narcolepsy, claimed as a sleep disorder has not been received. As the additional evidence is not new and material, the claims of service connection for arthralgia, claimed as arthritis, of all joints and both hands and narcolepsy claimed as a sleep disorder are not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The application to reopen a claim of service connection for arthralgia, claimed as arthritis, of all joints and both hands is denied. The application to reopen a claim of service connection for narcolepsy claimed as a sleep disorder is denied. REMAND In a statement in August 1997, the Veteran claimed he received psychological treatment in 1963 in Aberdeen, MD. His personnel records shows that he was stationed in Maryland from November 1962 to March 1963 and subsequently in 1964. In June 2011, a request dated in January 1997 was received along with the Veteran's personnel records indicating that the Veteran claimed that during service in 1963 he received psychiatric treatment at the hospital in Aberdeen, MD and that these records needed to be sought. A review of the file does not show that any attempt was made to obtain these records. As these records are pertinent to the Veteran's claim to reopen service connection for a psychiatric disorder an attempt must be made to associate them with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Ask the National Personnel Records Center to search for in-service hospital records for psychiatric treatment from 1963 from the Kirk US Army Hospital in Aberdeen, MD. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the requested development has been completed, readjudicate the Veteran's claim to reopen service connection for a psychiatric disorder, to include PTSD, depression, and neurosis. If the claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs