Citation Nr: 1801532 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received to a claim for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, neurosis, and paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Husain, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to August 1969. He also had National Guard service, with periods of active service, from August 1976 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. The Veteran has requested that the issue be recharacterized as a claim for an acquired psychiatric disorder, to include anxiety, neurosis, and paranoid schizophrenia. FINDINGS OF FACT 1. In an unappealed June 2010 decision, the Board denied that new and material evidence had been received sufficient to reopen the claim for service connection for an acquired psychiatric disorder (variously diagnosed). 2. Evidence submitted subsequent to the June 2010 Board decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. CONCLUSION OF LAW Evidence received since the June 2010 Board decision that denied service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, depression, and paranoid ideas), is not new and material, and the claim is not reopened. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. II. New and material evidence In regard to the history of this claim, a May 1982 RO decision denied the Veteran's claim for service connection for an acquired psychiatric disorder on the basis that the disability had pre-existed a period of ACDUTRA and was not aggravated by a period of ACDUTRA. The Veteran did not file an appeal within one year, and that decision became final. In 1999, the Veteran filed an application to reopen his previously denied claim. The RO denied this claim in October 1999 because it found that new and material evidence had not been received. The Veteran did not appeal this October 1999 decision and it became final. In September 2001, the Veteran filed another application to reopen his previously denied claim. The RO denied this claim in December 2002, again finding that new and material evidence had not been received. The Veteran appealed this decision, and in March 2005 the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2007 Memorandum Decision, the Court vacated the March 2005 Board decision in part and remanding the matter for further proceedings. Specifically, the Court found that the Board had failed to address the Veteran's allegation that he was a medic and had relevant training beyond that of a lay person and whether the Veteran was competent to provide a nexus opinion. In August 2008, the Board remanded for further development. In June 2010, the Board issued a decision which again denied the Veteran's claim. In the June 2010 decision, the Board addressed the Veteran's claim that he was a medic and was competent to provide a medical opinion in connection with his claim. The Veteran did not file an appeal to the Court, thus making the June 2010 Board decision final. In July 2010, the Veteran filed the claim currently on appeal. Initially, the Board notes that in the Veteran's July 2010 submission, it is clear that he is seeking to reopen his claim versus appealing the June 2010 Board decision. In the VA Form 21-4138, Statement in Support of Claim, the Veteran wrote, "This will be my application pursuant to 38 U.S.C. § 5108(a) and 38 C.F.R. 3.157 [sic] to reopen a previously denied claim for an acquired psychiatric disorder." Thus, this could not be construed as a Motion for Reconsideration of the Board's decision or an attempt to appeal the Board's June 2010 decision to the Court. In general, decisions of the Board that are not appealed in the prescribed time period are final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.104, 20.1100. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. § 5108; 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). Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. The Veteran now seeks to reopen his claim of service connection for an acquired psychiatric disorder, to include anxiety disorder, neurosis, and paranoid schizophrenia, on the submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a). The Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in June 2010. After reviewing the record, the Board finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156(a). Since the June 2010 Board decision, the Veteran has submitted copies of his service treatment records (STRs), lay statements, and current medical records. The Veteran contends that he suffers from an anxiety disorder, to include anxiety, depression, and paranoid ideas due to active service. The Veteran contends that he presents new and material evidence in the form of medical evidence related to service at Fort Hood in 1981. The Veteran states that these records demonstrate that his acquired psychiatric disorder was permanently aggravated by his service. The weight of the evidence does not support the presence of such records. In a statement from August 17, 2010, the Veteran contends he possesses sufficient credentials to render medical opinions. Accordingly, the Veteran presents his own medical opinion that his disability was permanently aggravated by his ACDUTRA, and claims that this contention has not previously been addressed. However, the Board's June 2010 specifically addressed the Veteran's claimed medical credentials and related opinion by noting that the Veteran's opinion lacks probative value. After discussing the Veteran's professional and educational background, the June 2010 Board decision found that the Veteran did not have the capacity to render a competent credible opinion as to whether his mental disability was chronically aggravated by active service. The Board found in June 2010 that his statements as to etiology of his current disability and aggravation did not raise a reasonable possibility of substantiating his claim. On August 21, 2017, the Veteran provided a statement that he is employed at a VA hospital; however he did not provide any further detail. Even if credibility of this statement is assumed, the Veteran does not state his occupation at the hospital, nor does he contend he is employed as a medical professional at the hospital. Therefore, the Veteran's statement that he is employed at a hospital does not establish that he is competent to provide a medical opinion regarding the etiology of his disability. Accordingly, the Veteran's medical opinion and other statements do not constitute new and material evidence sufficient to reopen the claim. The evidence of record in June 2010, the time of the last final denial, included the Veteran's STRs, service personnel records, and VA and private medical reports. In sum, the prior evidence reflected that the Veteran had normal psychiatric clinical evaluations in service, had a diagnosis of anxiety reaction in October 1973, a diagnosis of anxiety neurosis and paranoia in 1976, treatment for depression in 1976, was on medication for paranoia in 1979, was diagnosed as a chronic paranoid schizophrenic in 1979, diagnoses of anxiety neurosis and psychoneurosis vs. psychosis, was hospitalized and diagnosed with personality disorder in 1981, and had continuing mental health problems in the 1990s and 2000s. The Board finds that new evidence submitted since the Board's June 2010 decision is cumulative and redundant of the evidence of record at the time of the prior final denial of the claim. Historically, a May 1982 RO decision denied the Veteran's claim based on a finding that the Veteran was first treated for a nervous condition/anxiety reaction several years after separation from service and prior to National Guard ACDUTRA. The RO found that the Veteran's condition was not aggravated by his ACDUTRA. The Veteran did not file an appeal, and that decision became final. In 1999, the Veteran filed a claim to reopen his previously denied claim. The RO's October 1999 decision denied reopening the case, because the Veteran had not provided new and material evidence that his preexisting disease was aggravated by active service. The Board's June 2010 decision also denied the claim for the same reason. The STRs are absent for any new and material evidence that would relate to or substantiate a claim for service connection for an acquired psychiatric disorder, to include anxiety, neurosis, and paranoid schizophrenia. The Veteran has submitted duplicate copies of STRs that have already been considered in previous RO and Board decisions, and the new STRs are merely related to the Veteran's in-service military uniform and equipment usage. Within the new STRs, there is no evidence to substantiate the Veteran's contention that his acquired psychiatric disorder was aggravated by his National Guard ACDUTRA. Thus, the Board concludes that this evidence is not new and material under 38 C.F.R. § 3.156(a) and does not constitute relevant service department records under 38 C.F.R. § 3.156(c). Although the Veteran has submitted clinical records that demonstrate treatment for an acquired psychiatric disorder and other disabilities, none of this evidence contains any indication that a current an acquired psychiatric disorder is aggravated by ACDUTRA. The Veteran's current treatment records for an acquired psychiatric disorder do not provide any new and material evidence for the claim of service connection for an acquired psychiatric disorder, as they do not contain any new information relating to the substantiation of the claim at hand. This additional clinical evidence does not relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. As noted above, most of the evidence received since the last final denial is duplicative or cumulative of prior evidence of record. The Board finds that none of the evidence raises a possibility of substantiating the claim. As discussed above, the newly received documents are not material as they do not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the additional evidence received since the final June 2010 Board decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that new and material evidence has not been received and the claim of service connection for an acquired psychiatric disorder, to include anxiety, neurosis, and paranoid schizophrenia is not reopened. ORDER New and material evidence has not been received to a claim for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, neurosis, and paranoid schizophrenia. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs