Citation Nr: 1512061 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 03-23 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for schizophrenia. (The issue of whether an August 1991 decision of the Board of Veterans' Appeals should be revised or reversed on the grounds of clear and unmistakable error will be addressed in a separate decision.) REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which declined to reopen the Veteran's claim of service connection for schizophrenia. An August 2005 Board decision declined to reopen the Veteran's claim of service connection for schizophrenia. The Veteran appealed the August 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2007 Memorandum Decision, the Court vacated the Board's decision and remanded the claim to the Board for further proceedings. Pursuant to the September 2007 Court decision, the Board remanded this claim for additional development in May 2008 and September 2010. The Board acknowledges receipt of January 2014 correspondence from the Veteran's representative, purporting to withdraw services as his representative for the abovementioned issue. Because the representative's January 2014 request to withdraw was received after the appeal was certified to the Board, the attorney is obligated to make a motion to the Board demonstrating good cause to withdraw as the Veteran's representative at this juncture. See 38 C.F.R. § 20.608(b) (2014). The record does not reflect that the representative provided any reason for his withdrawal. As such, there has not been compliance with the provisions of 38 C.F.R. § 20.608(b), and withdrawal of representation is not accepted as valid. Accordingly, he is deemed to still be the Veteran's representative, as reflected above. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The July 1996 rating decision that denied service connection for schizophrenia was not appealed and is final. 2. Additional evidence associated with the claims file since the July 1996 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for schizophrenia, and/or does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim for service connection for schizophrenia. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (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 2014)) redefined VA's duty to assist the appellant 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) (2014). The notice requirements of the VCAA require VA to notify the Veteran 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) (2014). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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). In an October 2010 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The October 2010 letter also provided notice regarding the need to submit new and material evidence to reopen the Veteran's previously denied claim, and advised the Veteran of the basis for the prior denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Additionally, the October 2010 letter provided the Veteran with notice of the information and evidence needed to establish disability ratings and effective dates for his claimed disability. Although the October 2010 notification was issued after the adjudication on appeal, the Veteran's case was subsequently readjudicated in a March 2013 rating decision, and he had the opportunity to submit additional argument and evidence. Therefore, the content timing error did not affect the essential fairness of the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA and private medical records, a February 2011 VA examination, and the Veteran's statements. The Board finds that the February 2011 VA examination is adequate. The examiner reviewed the Veteran's claims file and was informed of the relevant facts regarding the Veteran's medical history. The opinion also shows that the examiner considered all relevant evidence of record, including the Veteran's statements. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included providing VCAA notice pursuant to Kent and Dingess. In response, the RO/AMC provided such notice in October 2010 correspondence. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by responding to notices and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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) (2014). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection for schizophrenia was originally denied by a rating decision in January 1973. The Veteran did not file a timely notice of disagreement, nor did he submit additional evidence within a year of the rating decision, and therefore the rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2014). The Veteran filed a request to reopen his claim in January 1990. The RO denied the Veteran's claim in July 1990. The Veteran appealed that decision, but in August 1991, the Board upheld the denial of service connection. A motion for reconsideration was not made, and the Veteran did not timely appeal the Board decision or file a claim for revision based upon clear and unmistakable error. 38 U.S.C.A. §§ 511(a), 7103(a) (West 2014); 38 C.F.R. § 20.1101(a) (2014). The August 1991 Board decision is therefore final. Most recently, the Veteran filed a request to reopen his claim for service connection for schizophrenia in June 1996. The RO declined to reopen his claim in a July 1996 rating decision. The Veteran did not file a timely notice of disagreement, nor did he submit additional evidence within a year of the rating decision, and therefore the rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In the July 1996 decision, the RO denied the claim because there was no evidence that the Veteran's schizophrenia was related to his period of service. In October 2002, the Veteran filed his request to reopen the claim for service connection for schizophrenia. In the December 2002 rating decision on appeal, the RO declined to reopen the Veteran's claim. The evidence received subsequent to the July 1996 rating decision denying service connection for schizophrenia includes, in relevant part, additional VA and private medical records, a February 2011 VA examination with May 2012 VA addendum, and the Veteran's statements. The additional VA and private medical records show that the Veteran received intermittent treatment for psychiatric disorders. On VA examination in February 2011, after examination and review of the claims file, the examiner diagnosed the Veteran with posttraumatic stress disorder (PTSD), severe agoraphobia with panic attacks, and paranoid schizophrenia by history, apparently in remission at present. The examiner noted that the Veteran had an extraordinarily complex psychiatric history, including multiple psychiatric hospitalizations with a diagnosis of schizophrenia in the first decade following discharge from service, as well as a diagnosis of schizophrenia made 3 years ago at the VA medical center. However, the examiner explained that he had found no active evidence of schizophrenia on examination and that it appeared that the Veteran's schizophrenia was residual or in remission. He determined that there was no clear indication that the Veteran had experienced symptoms of schizophrenia during service or within one year after discharge from service. The examiner did find that the Veteran clearly had sufficient stressors in Vietnam as well as sufficient current symptoms to meet the requirements for a PTSD diagnosis. He reported that the Veteran's primary psychiatric symptoms appeared to come from his agoraphobia and panic, which seemed peripherally related to his PTSD. The examiner also could not confirm any reference to anxiety and panic during service. He opined that it was more likely than not that the Veteran had PTSD due to his Vietnam service. Regarding whether the Veteran's schizophrenia was related to service, the examiner found that it was unclear, as was the service connection status of the agoraphobia and panic. In a May 2012 VA addendum opinion, the February 2011 VA examiner clarified his February 2011 opinion by asserting that the Veteran's current mental health symptoms were not related to his schizophrenia. Furthermore, the examiner reported that the Veteran's agoraphobia with panic attacks was secondary to his PTSD and should be considered as symptoms of PTSD. Finally, the examiner stated that all of the symptoms reported on the February 2011 VA examination were due to the Veteran's PTSD. The new evidence does not indicate that the Veteran's schizophrenia had been incurred during the Veteran's period of active service. Indeed, at no time did any of the Veteran's treating providers find that he had schizophrenia that had its onset in service. Instead, the February 2011 VA examiner determined that the Veteran's schizophrenia was residual or in remission and that all of the Veteran's current psychiatric symptoms were due to his PTSD (for which the Veteran was granted service connection and assigned a 100 percent rating in a March 2013 rating decision). Additionally, the updated medical records are duplicative of the previous medical evidence of record. The evidence of record at the time of the July 1996 rating decision already included continued treatment for psychiatric disorders. Thus, the Board finds that the new evidence merely reiterates a fact already established and is merely cumulative of the evidence of record at the time of the last final denial. Additionally, as the new evidence does not show that the Veteran's schizophrenia is related to his period of service, it does not relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence is not material. ORDER As new and material evidence has not been received, the claim of entitlement to service connection for schizophrenia is not reopened and the appeal is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs