Citation Nr: 18149227 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-06 477A DATE: November 9, 2018 ORDER The petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive episode without psychotic features, drug/alcohol abuse, depression, bipolar disorder, and schizoaffective disorder, to include as secondary to a service-connected right knee disability, is denied. FINDINGS OF FACT 1. A May 2005 rating decision denied the Veteran’s claim of entitlement to service connection for major depressive episode without psychotic features. The Veteran was subsequently notified of this determination within a May 2005 notification letter, which included his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the May 2005 rating decision is either previously of record, cumulative or redundant of evidence already of record, or does not relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive episode without psychotic features, drug/alcohol abuse, depression, bipolar disorder, and schizoaffective disorder, to include as secondary to a service-connected right knee disability, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2005 rating decision that denied the Veteran’s claim of entitlement to service connection for major depressive episode without psychotic features is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive episode without psychotic features, drug/alcohol abuse, depression, bipolar disorder, and schizoaffective disorder, to include as secondary to a service-connected right knee disability, has not been added to the record. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1984 to August 1986. The Veteran’s March 2015 statement in lieu of a VA Form 9 substantive appeal requested a video conference hearing before the Board at a local RO; however, following August 2018 and October 2018 notices to both the Veteran and his representative, the Veteran subsequently failed to appear at an October 2018 Board video conference hearing. According to a notification from the Bureau of Prisons, the Veteran has been incarcerated in the Florida Department of Corrections since November 2017, and while VA does not have authority to require a correctional institution to release a veteran to attend a Board hearing at the closest RO, the Board is mindful that incarcerated veterans are entitled to the same care and consideration given to their fellow veterans. However, the Board finds it significant that there is no evidence that the August 2018 or October 2018 hearing notifications, sent to the Veteran at his address of record and to his representative, were not received or were otherwise undeliverable. As such, the Board finds that the Veteran and his representative were properly informed of the scheduled Board hearing, despite his incarceration. However, there is no evidence that the Veteran or his representative requested postponement or rescheduling of the hearing. When an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the Veteran’s appeal based on the evidence of record. New and Material Evidence Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive episode without psychotic features, drug/alcohol abuse, depression, bipolar disorder, and schizoaffective disorder, to include as secondary to a service-connected right knee disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim on there is a final decision may be reopened if new and material evidence is submitted. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. A May 2005 rating decision denied the Veteran’s claim of entitlement to service connection for major depressive episode without psychotic features as the evidence of record did not show that major depressive episode without psychotic features was caused by the Veteran’s active service or was related to his service-connected right knee disability. The Veteran was subsequently notified of this determination within a May 2005 notification letter, which included his appeal rights; however, the Veteran did not appeal that decision or submit new and material evidence within the one-year appeal period. As such, the May 2005 rating decision is final. Since the prior final May 2005 rating decision, relevant evidence added to the record includes VA treatment records, including a January 2015 mental disorders examination, and lay statements by the Veteran. In particular, VA treatment records document intermittent hospitalizations from December 2005 to July 2014 for various psychiatric disorders, including depression, schizoaffective disorder, bipolar disorder, substance abuse, and suicidal ideation. Upon VA mental disorders examination in January 2015, the Veteran asserted that his depression was due to his service-connected right knee disability and stated that if he had not injured his knee, he would still be in the military and would not be depressed. The examiner noted that the Veteran clearly minimized the extent and impact of his substance abuse prior to, during, and after the military, and likewise minimized the impact of his substance abuse as a contributor, or cause, of his mood disorders. The examiner further noted that upon his May 1986 separation from service, the Veteran reported depression, which was assessed by the examining physician as situational stress, as there was no evidence at the time of separation examination of psychological or mental health problems. Additionally, the examiner noted that the Veteran did not claim any mental health issues upon his initial VA claim in September 1986. The examiner concluded that given that such records did not show that the Veteran’s current major depressive disorder was incurred in the military or emerged during the presumptive period, and did not document a relationship between his depression and his service-connected right knee injury, the examiner opined that the Veteran’s major depression was less likely than not proximately due to or the result of his right knee residuals and also that it was less likely than not that his service-connected right knee residuals exacerbated his major depressive disorder beyond its natural course. The Veteran’s has asserted variously that his acquired psychiatric disorder is secondary to his right knee condition, such as during the January 2015 VA examination and within the October 2018 appellant’s brief, or that his claimed acquired psychiatric disorder had its onset as depression during active service, as documented within his October 2012 claim to reopen. At the time of the May 2005 rating decision, there was evidence of in-service complaints of psychiatric symptoms, evidence of a current psychiatric disorder, and the Veteran was service connected for a right knee disability. What was lacking at that time was positive evidence of a nexus between the post-service psychiatric disorder and service or a nexus between the psychiatric disorder and the service-connected right knee disability. While the evidence added to the record since the prior final May 2005 rating decision is new, in that it was not of record at the time of the prior final rating decision, it is not material evidence because it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected right knee disability. The Veteran’s statements of in-service depression and a secondary relationship with his service-connected right knee disability are cumulative of his previous contentions at the time of the May 2005 final denial of the claim; therefore, such statements are not new and material evidence. Similarly, while the VA treatment record documenting his ongoing hospitalizations for variously diagnosed mental health disorders are new evidence, they do not identify a nexus between such conditions and his active service or his service-connected right knee disability. While the January 2015 VA examination report is new, it is not material to the claim; notably, the VA examiner provided a negative nexus opinion regarding any relationship between the Veteran’s claimed acquired psychiatric disorder and his active service, including his service-connected right knee disability. In other words, the evidence of record still lacks competent evidence of a nexus between the post-service psychiatric disorder and service or competent evidence of a nexus between the post-service psychiatric disorder and the service-connected right knee disability. Accordingly, as the evidence submitted is not both new and material, reopening of the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected right knee disability, is not warranted, and the application to reopen the claim is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel