Citation Nr: 1808462 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-01 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, to include schizoaffective disorder, depression, and anxiety disorder. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. INTRODUCTION The Veteran, who is the Appellant in this case, had active service from October 1970 to June 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2016 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral knee disabilities has been raised by the record in a September 2015 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) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a bilateral hearing loss disability and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A September 2010 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. A July 2011 rating decision denied reopening of the claim of entitlement to service connection for a psychiatric disability; the Veteran did not file a timely notice of disagreement, and no evidence was received within one year of the RO decision, nor were new, relevant service records received any time thereafter. 3. The evidence associated with the claims file subsequent to the July 2011 rating decision denying service connection for a right knee 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 September 2010 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 July 2011 rating decision, which denied reopening of the claim for service connection for a psychiatric disability, became final. 38 U.S.C. § 7105(a) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. The evidence received subsequent to the July 2011 rating 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 In July 2000, the Veteran filed an initial claim for service connection for a psychiatric disability. The claim was denied in a November 2001 rating decision. The RO found that there was no evidence of a nexus between the claimed disability and active service. The Veteran filed a timely notice of disagreement (NOD) with the November 2001 rating decision, and the RO continued denial of the claim in an March 2003 statement of the case (SOC). The Veteran filed a timely substantive appeal, and, ultimately, the Board denied the claim in a September 2010 decision, finding clear and unmistakable evidence that a psychiatric disability both pre-existed entrance into active service and was not aggravated by 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 September 2010 decision became final. See 38 U.S.C. §§ 7104, 7266; 38 C.F.R. §§ 20.1100, 20.1104. Subsequently, in February 2011, the Veteran filed a request to reopen her claim for service connection for a psychiatric disability. In a July 2011 rating decision, the RO denied reopening of the claim, finding that no new and material evidence demonstrating a nexus between the current psychiatric disability and active service had been received. The Veteran did not file a timely NOD with the July 2011 rating decision, and no evidence was received within one year of the RO decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the July 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In September 2015, the Veteran filed a request to reopen her claim of entitlement to service connection for a psychiatric disability. In the March 2016 rating decision that is the subject of this appeal, the 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. § 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 July 2011 rating decision denying service connection included service treatment records, service personnel records, post-service VA and private treatment records, VA examination reports and opinions, and the Veteran's statements. Service treatment records were negative for any reports, signs, symptoms, findings, or diagnosis of a psychiatric disability, including the May 1971 separation examination report. However, the Veteran's military personnel records included a February 1971 psychiatric evaluation summary indicating that the Veteran reported a history of marked social inadaptability both prior to and during her active service, with familial problems, social isolation, poor judgment, no commitment to any productive goals, and no motivation. The clinician assessed schizoid personality disorder and opined that rehabilitative efforts would be unproductive and recommended discharge. There are also multiple memorandums dated in May 1971 recommending discharge, noting that, beginning in January 1971, the Veteran was cycled through various duty positions but did not perform well, and was also counseled by her unit commander multiple times for personal, family, and job performance problems with no improvement. Consequently, the Veteran was discharged by reason of unsuitability in June 1971. A February 1973 letter indicates she requested a change of the discharge code listed on her DD Form 214 as she wished to reenlist. However, she was informed that she was disqualified for reenlistment based on the type of discharge and that waivers of such disqualification are not granted. The first post-service documented complaint of a psychiatric problem was in July 1982. The Veteran reported that she had been seeing a physician every two weeks in California for depression, but that she continued to have insomnia and depressive symptoms. It was noted that, at the age of 17, prior to enlistment in active service, she was hospitalized in Chicago after a pill overdose, and was rehospitalized at the same hospital at the age of 21 for a "minor nervous breakdown." She also stated that she had undergone chemical dependence treatment in 1971 and 1972 for severe alcoholism and had been psychiatrically hospitalized again in Omaha in 1980. She was diagnosed with major depressive disorder. Private and VA treatment records continue to show treatment for psychiatric symptoms from 1982, forward, but at no time did the Veteran attribute her symptoms to any event in active service. For instance, a December 1982 treatment note indicated that she had experienced depression especially since her divorce the prior year and due to problems with her family of origin. Another note dated in December 1982 mentioned unresolved grief at the death of her brothers, loss of her husband through divorce, lack of employment, self-esteem issues, and family issues. On her March 1991 VA Form 21-526, the Veteran stated that she had suffered severe depression since April 1983, more than a decade after separation from active service. However, October 1991 letters from the Veteran's mother and sister indicated that the Veteran had suffered from depression since the age of sixteen, and that she had attempted suicide on two occasions, at the ages of 16 and 18. She was afforded a VA examination in April 1992. The Veteran stated that she had always struggled with symptoms of depression, and the examiner diagnosed atypical depression. A March 1993 private treatment note indicates a history of anxiety disorder and depression that had been treated medically since the Veteran was 18 years old. An October 1993 treatment note indicates increased symptoms of anxiety and depression with paranoid features since her mother passed away three weeks prior. A January 1998 private treatment note indicates psychiatric difficulties dating back to the Veteran's teenage years, with the current hospitalization being her fifth inpatient psychiatric stay, with the first one occurring at the age of seventeen. At discharge, she was diagnosed with bipolar disorder, mixed type, depressed phase, in partial to full remission, as well as rule out passive dependent personality features. In December 2000, a clinician noted that the presence of psychotic features indicated that she may have always had those features but just had not talked about them, and raised the question of a diagnosis of schizoaffective disorder. Beginning in 2001, schizoaffective disorder became her predominant psychiatric diagnosis. In a February 2001 statement, the Veteran stated that she had been suffering from bipolar disorder since she was 14 or 15 years old. An August 2002 treatment note indicates she reported a lifelong history of feeling uncomfortable around people and stated that this was present when she was a child. An October 2004 treatment note indicates that the Veteran described an incident of abuse that precipitated her first "mental breakdown" at the age of sixteen. Notably, she denied any physical, emotional, or sexual military trauma. A VA opinion was obtained in May 2008. The VA psychologist reviewed the claims file and opined that the Veteran's current psychiatric disability is not due to or proximately caused by her military service. The psychologist reasoned that the records reviewed clearly indicated that she experienced significant symptoms of a depressive disorder prior to her military service, as manifested by suicide attempts and one or more psychiatric hospitalizations between the ages of 14 and 17. Thus, the onset of her current schizoaffective disorder appears to have occurred in adolescence as manifested by the aforementioned depressive symptoms, and has persisted to the present. The psychologist also noted that the Veteran appeared to have a genetic predisposition to mental illness, as evidenced by a maternal familial history of depression, as well as her brother having a history of depression. In March 2009, the same psychologist provided an addendum opinion, stating that she found no evidence to argue that the Veteran's schizoaffective disorder was aggravated beyond its natural progression by her active service. In particular, there was no record of the Veteran having experienced any emotional, physical, or sexual trauma during her military service (noting that she denied any such history during her mental health intake interview at the MVAMC on September 23, 2004), and she was not involved in any combat duty. The psychologist reiterated that the records clearly indicate the onset of a depressive disorder prior to her military service. In regard to the nature and etiology of her schizoaffective disorder, the psychologist noted that the Veteran has both a genetic predisposition to mental illness, as well as environmental stressors preceding her military service (e.g., emotional and verbal abuse perpetrated by her father and older brother) that likely interacted with her genetic vulnerability. The psychologist noted that at her intake interview on September 23, 2004, the Veteran reported that she was almost sexually abused by her older brother and father, and that these incidents caused her to have a nervous breakdown, resulting in her first hospitalization. The Veteran was afforded another VA examination in January 2010. She was diagnosed with schizoaffective disorder, severe, with psychotic features; and anxiety disorder NOS secondary to schizoaffective disorder. The examiner agreed that the Veteran's mental illness was a pre-existing condition and was not caused by active service, noting that she reported she had been suicidal and was hospitalized a number of times between the ages of 14 and 17 years old. At the examination, the Veteran reported she was in service for 180 days and that service "aggravated" her mental illness. When asked how active service aggravated her condition, the Veteran reported that it was the demands and stress of doing chores and boot camp. However, the examiner noted that her history of suicide attempts and hospitalization prior to service suggests that she was experiencing fairly serious mental health problems prior to enlistment. Based on her self-report and the records provided, the examiner opined that she developed a mental disorder in high school, and that she made it through boot camp but became increasingly paranoid. The examiner clarified that her schizoaffective disorder began developing in high school and opined that she had continuously experienced mental illness throughout her life. The examiner concluded that there was no evidence that suggested that her current anxiety or schizoaffective disorder were incurred or aggravated by military service. In a February 2011 Statement in Support of Claim, the Veteran stated that she was diagnosed with schizophrenia, depression, and anxiety at the age of fourteen after an attempted assault, and that she consequently struggled with depression throughout her childhood. She stated that she hid her prior psychiatric diagnoses from the Army because she did not think they would let her in. She then stated that as soon as she started basic training, her mental conditions were aggravated, and she started experiencing visual hallucinations. She did not tell her superiors about these hallucinations because she wanted to graduate from boot camp. However, she stated that her schizophrenia affected the way she performed her duties and that she experienced consistent panic attacks until she was discharged. Her representative asserted that the very nature of her discharge substantiates her claim of aggravation. The Veteran submitted a substantial amount of medical records from a private hospital dated from 2001 to 2003 along with her February 2011 request to reopen her claim. The records were mostly duplicative, and did not demonstrate a nexus of either causation or aggravation between the any psychiatric disability and active service. Based on this evidence, in July 2011, the RO denied reopening of the claim for service connection, finding that there was no new and material 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 July 2011 includes updated post-service treatment records, which show ongoing treatment for a psychiatric disability, additional statements from the Veteran expressing her belief that her current psychiatric problems are related to active service, and letters from family members. A May 2017 VA treatment note indicates that the Veteran reported that, during her military service, she was so anxious that she slept under the bed to protect herself. The December 2017 letters from her daughter and sister indicate that her mental illness began prior to enlistment in active service, and that during her military service, the Veteran complained to her sister about her fear that her peers were actually aliens. The treatment records and letters tend to confirm that the Veteran has had psychiatric symptoms since her childhood and that she continued to experience symptoms during active service, but do not demonstrate aggravation of the psychiatric disability during active service beyond natural progression of the disease. In sum, none of the evidence submitted and received since the last final denial demonstrates a medical nexus of either causation or aggravation between the current psychiatric disability and active service, and the Veteran's statements are redundant in that she has reiterated her assertions that her psychiatric disability was aggravated by her active service. The essence of her statements has not changed. The evidence added to the record since the previous July 2011 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 July 2011, 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 a psychiatric disability 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 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 September 2015 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, service personnel records, post-service VA and private treatment records, VA examination reports, and the Veteran's statements. To the extent that the Veteran identified medical facilities at which she received treatment many years ago, those records were requested, and, when unavailable, negative responses have been associated with the claims file. The Board acknowledges that the Veteran has not been afforded a new VA examination pertaining to her 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). ORDER Service connection for a psychiatric disability is denied. REMAND In the March 2016 rating decision on appeal, the RO also denied entitlement to service connection for bilateral hearing loss and tinnitus. Later that month, the Veteran filed a timely notice of disagreement with the denial of service connection for hearing loss and tinnitus. She has also submitted medical records in support of those claims. The RO has not furnished the Veteran with a statement of the case (SOC) which addresses these issues. In such cases, under judicial precedent, the appellate process was initiated by the NOD, and the appellant is entitled to an SOC on the issue. See Manlincon v. West, 12 Vet. App. 238 (1999). In order to afford the Veteran due process, an SOC is necessary on the issues of entitlement to service connection for a bilateral hearing loss disability and tinnitus. Accordingly, those issues are REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) The RO shall consider the issues of entitlement to service connection for a bilateral hearing loss disability and tinnitus. If the benefits sought cannot be granted, the RO should issue a statement of the case in accordance with applicable law and regulations. The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). [CONTINUED ON NEXT PAGE] This claim 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. §§ 5109B, 7112 (2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD T. Sherrard, Counsel Copy mailed to: The American Legion Department of Veterans Affairs