Citation Nr: 1511830	
Decision Date: 03/19/15    Archive Date: 04/01/15

DOCKET NO.  11-08 951	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for PTSD.

3.  Whether new and material evidence has been received to reopen a claim of service connection for benign tumor of the right jaw.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

U. Ifon, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1965 to July 1969, November 1990 to July 1991, February 2001 to October 2001, and from March 2003 to July 2003.

This appeal initially came to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In August 2014, these matters came were remanded for additional evidentiary development.  The case has now been returned to the Board for appellate review.

The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an unappealed October 2004 rating decision VA denied entitlement to service connection for PTSD and a benign tumor of the right jaw.

2.  The evidence received since the October 2004 rating decision relates to an unestablished fact necessary to substantiate the claim pertaining to PTSD.

3.  The evidence received since the October 2004 rating decision is cumulative in nature and duplicative of the evidence previously considered and does not relate to an unestablished fact necessary to substantiate the claim pertaining to a benign tumor of the right jaw.
CONCLUSIONS OF LAW

1.  The October 2004 rating decision is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.1103 (2014).

2.  New and material evidence has been received since the October 2004 rating decision to reopen the claim of entitlement to service connection for PTSD.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).

3.  New and material evidence has not been received since the October 2004 rating decision to reopen the claim of entitlement to service connection for a benign tumor of the right jaw.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in March, May, and June 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently adjudicated in a December 2014 Supplemental Statement of the Case.

Pursuant to the Board's August 2014 remand, VA notified the Veteran in October 2014 of what evidence is needed to reopen a claim for service connection.  To the extent such notice may not have been fully compliant with the remand directives, the Board notes that VA is not required to provide notice of the information and evidence necessary to substantiate the particular element(s) that were found insufficient in a previous denial of a claim.  See VA Office of the General Counsel opinion, VAOPGCPREC 6-2014 (Nov. 21, 2014).  Thus, the directives of Kent v. Nicholson, 20 Vet. App. 1 (2006), are no longer controlling insofar as it construed the former § 5103(a) to require that VA provide case-specific notice to a claimant in a claim to reopen.  Thus, the Board finds there has been substantial compliance with its August 2014 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

VA has fulfilled its duty to assist.  The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate these claims.

Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993).  The appeal is now ready to be considered on the merits.

Claim to Reopen

The Veteran was denied entitlement to service connection for PTSD and a benign tumor of the right jaw in an October 2004 rating decision.  As he did not express disagreement with the decision, it became final.  See 38 C.F.R. §§ 19.129, 19.192.  As such, the Board must determine whether new and material evidence has been received to reopen the claims.  38 U.S.C.A. §§ 5108, 7105.  

The Board notes that in June 2006, after the issuance of the October 2004 rating decision, the VA received additional service treatment records.  A review of these records did not reveal any additional evidence with a reasonable possibility of substantiating either claim and are thus not relevant.  See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010).  Therefore, the Board finds the provisions of 38 C.F.R. § 3.156(c) are not applicable to either claim and the Board will proceed with its determination of whether new and material evidence has been received to reopen the matters before the Board. 

New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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).  In this regard, it must be noted that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  

At the time of the final October 2004 rating decision, the RO determined the Veteran did not have a current diagnosis of PTSD and lacked corroboration for his claimed stressors.  Since the October 2004 rating decision, the Veteran has submitted private PTSD evaluations and provided more details about his in-service stressors.  The VA also made a formal finding as to his alleged stressors.  As such, the newly received evidence constitutes new and material evidence sufficient to reopen the claim because it was not previously of record and it demonstrates a previously unestablished fact that raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156.  Further, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the claim, even where it would not be enough to convince the Board to grant a claim.  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  

Having received new and material evidence, the Board is reopening the previously denied claim of entitlement to service connection for PTSD.  As the RO did not reopen the matter and considered it on the merits, it will be remanded for an initial determination.

As for the claim pertaining to the Veteran's tumor of the right jaw, at the time of the final October 2004 rating decision, the RO determined there was no nexus linking the disorder to service.  Since that decision, the Veteran has submitted a private dental examination that indicates evidence of an asymptomatic lesion that requires no treatment.  As the evidence of record already established a current disorder, the Veteran has not submitted any evidence not previously of record that demonstrates a previously unestablished fact that raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156.  Specifically, no new evidence has been received that suggests the Veteran's tumor of the right jaw was incurred during his military service.  

As such, the claim of entitlement to service connection for a tumor of the right jaw cannot be reopened and the claim to reopen is denied.  


ORDER

New and material evidence has not been received to reopen the claim of entitlement to service connection for a tumor of the right jaw, and the claim to reopen is denied.  

New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD.  The claim is granted to this extent.


REMAND

The Board has reopened the claim for entitlement to service connection for PTSD.  Therefore, the AOJ should develop/adjudicate the claim on the first instance. 

Inasmuch as the case is being remanded for additional adjudication, any relevant outstanding VA treatment records should be associated with the claims file.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran to identify any pertinent private or VA treatment records that might be outstanding and associate them with the claims file.  Follow proper notification procedures if the records are unobtainable.  All attempts to obtain records should be contemplated.

2.  After completing all indicated development, readjudicate the claim remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response.

The Veteran has the right to submit additional evidence and argument on the matter 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 2014).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs