Citation Nr: 1543644 Decision Date: 10/13/15 Archive Date: 10/19/15 DOCKET NO. 11-04 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a sleep disorder. 2. Whether new and material evidence has been received to reopen a claim for service connection for a lung disorder. 3. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Georgia Department of Veteran Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service from March 1965 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) following a September 2007 and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the September 2007 decision, the RO denied the Veteran's petitions to reopen previously denied claims for entitlement to service connection for a sleeping disorder and a lung disorder, finding that no new and material evidence had been presented. In the April 2009 decision, the RO again denied the petitions to reopen, and also denied his claim for entitlement to service connection for bilateral foot disorder. The Veteran testified before a Decision Review Officer (DRO) in August 1993. A transcript of the hearing has been associated with the Veteran's claims file. The issue of entitlement to service connection for a prostate disorder has been raised by the record in the February 2011 VA Form-9 statement, but 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. 38 C.F.R. § 19.9(b)(5). The issues of whether new and material evidence has been received to reopen a claim for service connection for lung disease, and entitlement to service connection for a bilateral foot disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In an October 1995 order, the Board denied the Veteran's claim for entitlement to service connection for a psychiatric disorder, now claimed as a sleep disorder. The Veteran did not appeal the decision. 2. In December 1996, the Veteran filed a petition to reopen the claim for entitlement to service connection for a psychiatric disorder with insomnia. 3. In a January 2002 decision, the RO denied the Veteran's petition to reopen the claim for entitlement to service connection for a psychiatric disorder with insomnia. The Veteran did not appeal the decision. 4. Evidence received since the January 2002 decision denying the petition to reopen the claim for service connection for a sleeping disorder is new to the record, but is not material in that it does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a sleep disorder. CONCLUSIONS OF LAW 1. A January 2002 rating decision that denied the Veteran's petition to reopen a previously denied claim for entitlement to service connection for a sleep disorder is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.302, 20.1103 (2015). 2. Evidence relating to the Veteran's claim of service connection for a sleep disorder received since the RO's January 2002 rating decision is new but not material, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Board finds that all notification and development action needed to render a decision on the claim decided herein has been accomplished. In this respect, through June 2007 and February 2009 notice letters, the RO notified the Veteran of the legal criteria governing his claims and the evidence needed to support them. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claims and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the June 2007 and February 2009 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). These requirements were met by the aforementioned June 2007 and February 2009 notice letters. The Veteran was further provided notice concerning the criteria for assigning disability ratings or effective dates pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), via the June 2007 and February 2009 letters. These questions are thus not now before the Board. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board further points out that the VCAA expressly provides that nothing in the Act "shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title." 38 U.S.C.A. § 5103A(f) (West 2014). That notwithstanding, the Board finds that all notification and development action needed to arrive at a decision as to the applications to reopen has been accomplished. Specifically, with regard to the claims to reopen, the RO informed the Veteran of the requirements as set forth in 38 C.F.R. § 3.156(a) by the June 2007 and February 2009 notice letters. The notice letters provided the regulatory definition of "new and material" evidence. The Veteran was also told of the evidence and information necessary to establishing the underlying claims of entitlement to service connection. Specifically regarding VA's duty to notify, the Board finds that the June 2007 and February 2009 notice letters to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Board further acknowledges that the U.S. Court of Appeals for Veterans Claims (Court) held that in petitions to reopen, as in the present case, the proper notice needed to include not only that evidence and information needed to reopen a claim and the elements required for claim substantiation, but also the reason(s) for the prior denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Subsequently, in a precedential opinion, the VA Office of the General Counsel held in VAOPGCPREC 6-2014 that the Court's holding in Kent was no longer applicable due to subsequent decisions of the U.S. Court of Appeals for the Federal Circuit and because of revisions in 2012 to 38 U.S.C.A. § 5103(a) by Pub. Law No. 112-154, §504(a), 126 Stat. 1165, 1191 (2012). As such, VAOPGCPREC 6-2014 determined that the proper notice only required claim-specific notice and not case-specific notice. Thus, there was no requirement to provide notice of the reason(s) for the prior denial. Consequently, the Board does not find that the VCAA requires remand to the RO; nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. The Veteran's service treatment records have been associated with the claims file, as have records of VA treatment he has received since service. He has not otherwise alleged that there are any outstanding medical records probative of the claims that need to be obtained. The Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claim. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claims that need to be obtained. Further, although the Veteran's claim for entitlement to service connection for a sleep disorder will not be reopened by the Board, reasonable efforts to assist the Veteran in this claim have been undertaken. Although a VA examination was not provided in connection with this claim, the Board notes that the duty to provide an examination does not apply to a petition to reopen a finally adjudicated claim without the receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii); see also Anderson v. Brown, 9 Vet. App. 542, 546 (1996). As discussed in detail below, the Veteran's claim for entitlement to service connection for a sleep disorder has not been reopened; thus, an examination is not required. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Analysis The Board notes that regardless of whether the RO determined that no new and material evidence was received to reopen the claim or that an entirely new claim was received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran has had the opportunity to present evidence and argument in support of his appeal. There is no indication that the Board's present review of the claim will result in any prejudice to him. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). New evidence is defined as 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) (2015). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed his original application for service connection for a sleep disorder in March 1992. The Board denied the claim for service connection in October 1995 on the basis that the Veteran had not shown that his diagnosed psychiatric disorder (with sleep disorder component) had onset during service, or that he had received any in-service treatment or diagnosis for a psychiatric disorder. The Veteran did not appeal the Board's decision. The Veteran filed a petition to reopen his claim, which the RO denied in a rating decision in January 2002 on the basis that the evidence the Veteran submitted, although new, did not reasonably substantiate the issue of service connection. He did not submit a notice of disagreement (NOD), and therefore his appeal was never completed. No new and material evidence was received following the rating decision until the Veteran filed his petition to reopen the claim in April 2007. As no new and material evidence was received during the appeal period following the January 2002 rating decision, the January 2002 rating decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for a sleeping disorder. See 38 U.S.C.A. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The evidence of record at the time of the January 2002 rating decision consisted of the Veteran's service treatment records, VA treatment records from July 1967 to December 2001, private treatment records from September 1966 to May 1993, the Veteran's testimony before the DRO in August 1993, and the Veteran's numerous statements throughout the appeal period. In his February 1965 service enlistment examination, the Veteran claimed that he suffered from frequent trouble sleeping, that he had been hospitalized in the past for a head injury, and that he had been twice rejected for military service in April 1961 and July 1961. One month after he began his tour of duty in March 1965, psychiatrists determined that he was suffering from a long-standing refractory personality disorder that preexisted service. The Veteran was recommended for medical discharge, and in his separation medical examination in April 1965, he complained, among other things, of insomnia. The examiner diagnosed him with a chronic personality disorder. VA treatment records in July 1967 indicated that the Veteran claimed he suffered from insomnia for about five years, and diagnosed him with chronic and moderately severe anxiety reaction. Records show that he was hospitalized from December 1967 to January 1968 for treatment of his psychoneurotic symptoms, with a diagnosis of chronic and severe anxiety reaction at the time of discharge. The Veteran was again hospitalized from February 1969 to March 1969 for complaints of insomnia, and was diagnosed with chronic and mild anxiety reaction upon discharge. In August and September 1993, examiners noted that the Veteran had been treated for insomnia, anxiety, and depression, and that he continued to complain of difficulty sleeping despite having taken various medications. The examiners diagnosed him with dysthymia with somatic features. Records from March 2000 to December 2001 indicated the Veteran received various medications for insomnia, and examiners diagnosed him with major depression and insomnia. Private treatment records showed that the Veteran complained of and received prescriptions for insomnia in September 1966, and that he was diagnosed with a depressive reaction in November 1966. He was hospitalized in November 1970, February 1972, and July 1976 for insomnia, depression, agitation, restlessness, and other psychoneurotic symptoms. The diagnoses upon discharge included depressive neurosis, depression with paranoid tendencies, depression with somatization, paranoid schizophrenia with depressive features, and anxiety and depressive reactions. Between November 1990 and September 1991, he was treated for major depression, anxiety disorder, a questionable personality disorder, and insomnia secondary to his major depression. In May 1993, the Veteran was treated for psychoneurotic symptoms, to include insomnia, and was diagnosed with a paranoid personality disorder. In various statements filed in 1967 in connection with his claim for VA compensation benefits, the Veteran stated that he suffered from insomnia, which he had had for about three years prior to service, and that his condition had not improved despite treatment. In his August 1993 hearing, the Veteran claimed that his psychoneurotic symptoms, to include his insomnia, were etiologically related to service. He related an incident in which a second lieutenant yelled and threatened him, claiming that this incident aggravated his sleeping disorder. He denied he received any psychiatric treatment prior to service. New evidence received since the January 2002 rating decision includes VA treatment records from February 2002 to February 2009, which indicated ongoing treatment for the Veteran's insomnia with medications, and the Veteran's statements contending the same claims as prior statements-that his sleep disorder was related to his military service, and that the incident with the second lieutenant aggravated his preexisting insomnia. The Board notes that lay assertions regarding the etiology of a claimed disability can suffice to reopen a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In Shade, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Id. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. The Court further held that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." Id. However, in this case, the Veteran's lay statements and testimony are cumulative and redundant of the statements already of record. In support of his December 1996 petition to reopen his claim for service connection, the Veteran asserted that his military service aggravated his diagnosed sleep disorder, and provided VA and private treatment records showing his numerous hospitalizations and treatments for the disorder. Similarly, in support of his petition to reopen his claim for service connection, the Veteran argues the same evidence to prove that his sleep disorder worsened after service. Further, although he submitted VA treatment records showing ongoing treatment for insomnia, the Board finds that these assertions were already contained in the prior claim and addressed in the January 2002 rating decision denying the petition to reopen. Again, such statements are essentially cumulative and redundant of the previous lay statements of the Veteran-that his insomnia was aggravated by his military service-that were already of record at the time of the January 2002 RO decision. In the October 1995 Board decision, the claim was denied because the evidence of record failed to show that he Veteran's psychiatric symptoms, to include insomnia, were etiologically related to or aggravated by his military service. These findings were reiterated in the January 2002 rating decision. Similarly, the new evidence the Veteran provided since the January 2002 rating decision, while it reflects the Veteran's ongoing treatment for a sleep disorder, does not provide any indication that any treatment provider has established that the disorder is linked to the Veteran's time in service. The new evidence received in support of the claim to reopen, including lay statements and VA treatment records, does not show that the Veteran's current sleep disorder is etiologically related to his time in service. There has been no competent evidence of record linking the Veteran's claimed sleep disorder to service. The Veteran has not submitted any evidence to that effect beyond his own statements, which, as discussed above, are cumulative and redundant of the evidence previously of record. What is necessary to reopen the Veteran's claim of service connection is evidence showing onset of the disability during service, or evidence establishing that military service aggravated the claimed disability. Should the Veteran obtain such evidence in the future, he may submit such evidence and request that his claim be reopened. In summary, and for the reasons and bases set forth above, the Board finds that the evidence received in conjunction with the petition to reopen a previously denied claim for entitlement to service connection for a sleep disorder is not new and material, and does not serve to reopen the claim of service connection. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). The benefit sought on appeal is accordingly denied. ORDER New and material evidence has not been received to reopen the claim of service connection for a sleep disorder, and the claim is denied. REMAND The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the petition to reopen a previously denied claim for entitlement to service connection for a lung disorder and entitlement to service connection for bilateral foot disorder. Regarding the issue to reopen the previously denied claim for entitlement to service connection for a lung disorder, the Board notes that in the September 2007 and April 2009 rating decisions, the RO denied the petitions to reopen the Veteran's claim for service connection. In August 2008 and January 2010, the Veteran submitted NODs with the denial to reopen his claim for a lung disorder. This matter must thus be returned to the AOJ for appropriate consideration and issuance of a statement of the case regarding this claim. Manlincon v. West, 12 Vet. App. 238 (1999). In connection with the claim for entitlement to service connection for bilateral foot disorder, the Veteran alleges that he received in-service treatment for blisters on his feet and that his feet problems began in service and have continued since his discharge from the military. In light of the Veteran's claims and post service clinical findings of plantar fasciitis of the left foot, a VA examination should be afforded the Veteran to determine the etiology of any current foot disorder. Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell, 2 Vet. App. at 611. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his bilateral foot disorder that is not already of record, to include any and all treatment since discharge from service. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file, and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain any relevant VA treatment records from Dublin VAMC, or any other VA medical facility that may have treated the Veteran, since February 2009 and associate those documents with the claims file. 3. Schedule the Veteran for an examination to determine the etiology of his bilateral foot disorder. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner should diagnose any and all current foot disorders. The examiner should then indicate whether it is as likely as not (50 percent probability or greater) that any diagnosed foot disorder had its clinical onset in service or was caused by his reported in-service injury, or any other incident of service. The examiner must specifically discuss the Veteran's in-service treatment for blisters, as well as his contentions regarding continuity of symptomatology, in the context of any negative opinion. The examiner must reconcile any opinion with the evidence in the claims folder, to include VA outpatient treatment records. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the remaining claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time for response before the claims file is returned to the Board. 5. The AOJ must take appropriate action pursuant to 38 C.F.R. § 19.26 in response to the January 2010 NOD concerning the Veteran's petition to reopen his claim for entitlement to service connection for a lung disorder, including issuance of an SOC pertaining to this claim. (Only if a timely substantive appeal is filed should this issue be returned to the Board.) The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs