Citation Nr: 1807610 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-19 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, to include schizophrenia. ORDER New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for a psychiatric disability is denied. FINDINGS OF FACT 1. A May 2005 Board decision denied service connection for a psychiatric disability; the Veteran did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims. 2. The evidence associated with the claims file subsequent to the May 2005 Board decision denying service connection for a psychiatric disability is either redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, or does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2005 Board decision, which denied service connection for a psychiatric disability, became final. 38 U.S.C. §§ 7104, 7266 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 2. The evidence received subsequent to the May 2005 Board decision is not new and material to reopen the claim of entitlement to service connection for a psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from February 1987 to May 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction over the Veteran's claims file was subsequently transferred to the Denver RO. The Veteran and his son provided testimony at an August 2016 Travel Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Veteran contends that his psychiatric disability, diagnosed as schizophrenia, first manifested during active service. In June 1999, he filed an initial claim for service connection for a psychiatric disability. The claim was denied in an August 1999 rating decision. The Reno RO found that there was no evidence of a nexus between the current psychiatric disability, diagnosed as schizophrenia, and active service. The Veteran filed a timely notice of disagreement (NOD) with the August 1999 rating decision, and the RO continued denial of the claim in a November 1999 statement of the case (SOC). The Veteran filed a timely substantive appeal, and, ultimately, the Board denied the claim in a May 2005 decision, finding that schizophrenia did not manifest within one year of active service, nor was there evidence of a nexus between the current psychiatric disability and active service. The Veteran did not appeal the Board's decision to the United States Court of Appeals for Veterans' Claims (Court). Consequently, the Board's May 2005 decision became final. See 38 U.S.C. §§ 7104, 7266; 38 C.F.R. §§ 20.1100, 20.1104. Subsequently, in July 2011, the Veteran filed a request to reopen his claim for service connection for a psychiatric disability. In the July 2013 rating decision that is the subject of this appeal, the Phoenix RO denied reopening of the claim, finding that no new and material evidence showing a nexus between the claimed disability and active service had been received. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran's claim is whether new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability. Notwithstanding the determination of the RO regarding reopening or not reopening the claim, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). "New" evidence is defined as evidence not previously received by 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). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been received, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the previous requirement of a well-grounded claim). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the last final May 2005 Board decision denying service connection included service treatment records, post-service VA treatment records, a VA examination report, and the Veteran's statements. Service treatment records were negative for any reports, signs, symptoms, findings, or diagnosis of a psychiatric disability, including the March 1994 separation examination report, which showed a normal psychiatric evaluation and that the Veteran denied experiencing depression, excessive worry, or nervous trouble of any sort. The first post-service documented complaint of a psychiatric problem was in May 1998, when the Veteran was psychiatrically hospitalized; his profile was noted to be consistent with an early stage of schizophrenia. He was noted to have stated that his first psychiatric hospitalization was in 1997, three years after service separation, and he did not report experiencing any symptoms prior to 1997. He was afforded a VA psychiatric examination in August 1998 at which he again reported that his first psychiatric hospitalization was in 1997, several years after service separation, for auditory hallucinations and paranoid ideation. He stated that he had been almost continuously treated for schizophrenia since that time. The examiner noted that his records from a private hospital, which are not associated with the claims file, indicated one psychiatric hospitalization at the age of 23 due to psychotic symptoms. However, when asked about that, the Veteran denied having ever been hospitalized for psychiatric symptoms prior to 1997. He also reported that he left the Army because he was dissatisfied with his unit and working conditions and felt unable to advance or get retrained. The examiner diagnosed chronic paranoid schizophrenia. On a January 2000 VA Form 9, the Veteran stated that it was possible that his psychiatric symptoms began in 1993, manifested by concentration difficulties. Further, he stated that several months following service separation, he was involved in a truck accident caused by lack of concentration. An August 2002 VA treatment note indicated that the Veteran reported that his psychiatric symptoms began in 1997. Based on this evidence, in May 2005, the Board denied the claim for service connection for a psychiatric disability to include schizophrenia, finding that there was no evidence that schizophrenia manifested during active service or within a year of active service, and that there was no evidence of a medical nexus between the current psychiatric disability and active service. Evidence added to the record since the time of the last final denial in May 2005 includes updated post-service treatment records, which show ongoing treatment for schizophrenia, and additional statements from the Veteran expressing his belief that his psychiatric symptoms began during active service. For instance, in an April 2012 Statement in Support of Claim, the Veteran stated that he first experienced symptoms of schizophrenia in 1993, during active service, when he experienced fear of being watched by military law enforcement; however, he stated he did not recognize this fear as a symptom of a psychiatric disability at the time. This is a reiteration of his prior statements that his symptoms began during active service. In sum, none of the evidence submitted and received since the last final denial demonstrates a medical nexus between the current psychiatric disability and active service, and the Veteran's statements are redundant in that he has reiterated his assertions that his psychiatric symptoms began during active service. The essence of his statements has not changed. The evidence added to the record since the previous May 2005 denial of the claim for service connection for a psychiatric disability does not constitute new and material evidence. Although most of the evidence is new, in that it was not associated with the claims file prior to the last final denial in May 2005, for the reasons set forth above, such evidence is not material because it is redundant or cumulative of previously submitted evidence, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the claim. As noted above, the statements of the Veteran on the matter are redundant and cumulative because they just reiterate previously considered assertions. Moreover, the medical evidence continues to show treatment for schizophrenia but does not indicate a medical nexus between the current disorder and active service, so such evidence does not relate to an unestablished fact. All the evidence together does not raise a reasonable possibility of substantiating the claim for service connection. Therefore, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have not been satisfied, and the claim of entitlement to service connection for a psychiatric disability cannot be reopened. The Board acknowledges the argument of the Veteran's representative at the August 2016 Board hearing that VA did not properly consider the findings of the August 1998 VA examiner in the initial August 1999 denial of the claim. However, the August 1999 rating decision specifically referenced the August 1998 VA examination report in its narrative. Moreover, the Board does not have jurisdiction over the issue of whether clear and unmistakable error was made in the August 1999 rating decision, as this issue has neither been raised nor properly developed on appeal. Indeed, the August 1999 rating decision was subsumed into the May 2005 Board decision, which is the most recent prior final denial of the claim on appeal. As the undersigned VLJ explained to the Veteran and the Representative at the August 2013 Board hearing, pursuing such a claim would require that a Motion of Clear and Unmistakable Evidence in the May 2005 Board decision be filed directly with the Board. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the duty to notify was satisfied by way of a June 2013 letter. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, a VA examination report, and the Veteran's statements, to include his testimony at the August 2016 Board hearing. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2016 Board hearing, the undersigned Veterans Law Judge asked questions pertaining to the criteria necessary for establishing his claim, including regarding specific evidence that may help substantiate his claim. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. The Board acknowledges that the Veteran has not been afforded a new VA examination pertaining to his psychiatric disability claim. However, in the context of claims to reopen, the duty to provide an examination or obtain an opinion is a "conditional or provisional duty." Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); see also 38 C.F.R. § 3.159(c). In this case, the Board has determined that new and material evidence has not been received to reopen the claim of entitlement to service connection for a psychiatric disability. Thus, VA's duty to provide an examination or obtain an opinion with regard to that claim is extinguished. Woehlaert, 21 Vet. App. at 463. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD T. Sherrard, Counsel Copy mailed to: Colorado Division of Veterans Affairs Department of Veterans Affairs