Citation Nr: 1808108 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-18 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to December 1983, as corrected in the DD-215. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. As regards characterization of the appeal concerning the Veteran's claim for service connection for PTSD, the Board notes that the Veteran filed an application to reopen a claim for schizophrenia and paranoia in April 2012 and he later included a claim for PTSD in October 2012. Although the RO did not address the claim as a request to reopen a previously denied claim for a psychiatric disorder in the August 2013 rating decision, as discussed below, there was a prior, final denial of service connection for a psychiatric disorder. Thus, the Board has recharacterized the claim as encompassing all claimed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a Veteran's claim for service connection for PTSD includes any mental disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record). As noted by the Court in Clemons, such an approach does not run afoul of the Federal Circuit's holding in Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) that claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits. See Clemons, 23 Vet. App. at 8 ("Boggs stands for the proposition that, if there is a final agency decision denying a claim based on a particular diagnosis, and subsequently a new and different diagnosis is submitted for VA's consideration, the second diagnosis must be considered factually distinct from the first and must be considered to relate to a separate claim"). As shown below, there is no diagnosis of PTSD, consequently, Boggs is not for application, and the claim will be treated as an application to reopen the previously denied claim for service connection for a psychiatric disorder. Hence, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection for a psychiatric disorder. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. An April 2010 rating decision denied reopening the claim for schizoaffective disorder (previously psychosis and delusional disorder) claimed as secondary to microwave exposure. The Veteran did not appeal that rating decision and new and material evidence was not received within one year of the decision. 2. Evidence received since the April 2010 rating decision is essentially cumulative, does not relate to the bases for the prior denial, and does not raise a reasonable possibility of substantiating the claim of service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied the application to reopen the claim for service connection for schizoaffective disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the April 2010 rating decision is not new and material, and the criteria for reopening of the claim for entitlement to service connection for a psychiatric disorder have therefore not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with regard to 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 a duty to assist argument). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Analysis Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). By way of background, the Veteran's initial claim for service connection for psychosis with delusion disorder was denied in a February 2009 rating decision, as there was no evidence that these disorders were incurred in or caused by service. The Veteran filed an application to reopen in February 2010, which was granted in an April 2010 rating decision, recharacterized as a claim for service connection for a schizoaffective disorder claimed as secondary to microwave exposure, and denied on its merits. The RO determined that the evidence did not reflect that the Veteran was exposed to microwaves at dangerous levels of exposure and there was no nexus between his claimed disorder and service, and the Veteran claimed exposure to microwaves at military installations since 1993, years after his discharge from service. The Veteran was notified of the denial in that same month, but he did not appeal. In addition, the Veteran did not submit new and material evidence within the one year appeal period, and no additional service records have been received at any time pertinent to the previously disallowed claim for service connection, warranting re-adjudication of the claim (see 38 C.F.R. § 3.156(c)). The denial, therefore, became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed an application to reopen his claim for service connection for schizophrenia and paranoia in April 2012 and the Veteran added a claim for PTSD in October 2012. The RO denied the claim for PTSD in an August 2013 rating decision. The Veteran timely appealed. The relevant evidence of record at the time of the April 2010 rating decision included the Veteran's service treatment records (STRs) and VA treatment records, as well as lay statements from the Veteran. In his February 2010 statements and VA treatment records, the Veteran reported being exposed to microwaves and that he believes the VA is involved in mind controlling him. Relevant evidence received since the April 2010 rating decision includes VA treatment records and statements from the Veteran alleging that he was exposed to microwave exposure in 1996 and 1997 at his "inception into the VA" at the Bedford VAMC and that he was ex-communicated by two religious organizations that he believes infiltrated the VA and that the VA is engaging in activities to mind-control him. He also claims that he thinks the CIA may be involved. Throughout the VA records, he claims that he filed a lawsuit against the VA for using mind science technology. In his May 2014 substantive appeal, the Veteran specifically states that his issues did not occur during his service, but his issues developed due to intervention and excommunication by civilian abuse. The Veteran's statements and the new medical treatment records do not relate to an unestablished fact necessary to substantiate the merits of the claim, nor is there any diagnosis of PTSD, which as noted could warrant de novo adjudication of a claim for service connection for PTSD pursuant to Boggs, supra. Here, the Veteran alleges that he was exposed to microwaves in 1996 or 1997 when he started treatment at the VA, years after his discharge from service in December 1983. There is no new and material evidence, such as a medical opinion linking his psychiatric symptoms to his service, and the Veteran has not alleged continuity of psychiatric symptoms during and since service, which would either relate to the basis for the prior denial or that could reasonably substantiate the claim were the claim to be reopened. The evidence received since the April 2010 rating decision is essentially cumulative of the evidence of record at the time of the April 2010 rating decision. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record is not new and material. Therefore, reopening of the claim for service connection for a psychiatric disorder is not warranted. The benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER The application to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs