Citation Nr: 1809293 Decision Date: 02/16/18 Archive Date: 02/27/18 DOCKET NO. 12-09 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether new and material evidence has been received sufficient to reopen the claim of service connection for an acquired psychiatric disability. ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The October 2010 rating decision denied the Veteran's request to reopen his prior claim of service connection for schizophrenia as no new and material evidence had been submitted. The Veteran filed a notice of disagreement (NOD) with the rating decision in November 2010. A statement of the case (SOC) was issued in April 2012, and the Veteran perfected his appeal in April 2012. The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue in this case is whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disability. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). A claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Veteran's nervous disorder/schizophrenia claim has been properly characterized as an acquired psychiatric disability. FINDINGS OF FACT 1. A March 1983 Board decision denied the Veteran's claim of service connection for an acquired psychiatric disability. 2. A February 2008 rating decision denied reopening of the claim of service connection for schizophrenia, paranoid type; the Veteran did not perfect a timely appeal of this decision. 3. Additional evidence received since the February 2008 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The February 2008 rating decision denying reopening of the claim of service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has not been received since the February 2008 rating decision, and the claim of service connection for an acquired psychiatric disability is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior to the receipt of the claim that led to the current appeal, the Board, in a March 1983 decision, denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disability. The decision found that the Veteran's psychiatric disability clearly and unmistakably existed prior to service and therefore the presumption of soundness has been rebutted. The Board also found that the Veteran's psychiatric disability was not aggravated by service. As such, the only unestablished facts at the time of the Board decision went to not being able to rebut the presumption of soundness. See 38 U.S.C. § 1110, 1111, 1131, 1137. Unless the Chairman of the Board orders reconsideration of the decision, the Board decision is final on the date stamped on the face of the decision. See 38 C.F.R. § 20.1100 (2017). The record does not reflect that the Veteran filed a claim for reconsideration of the March 1983 Board decision, and as such the March 1983 Board decision is final. Generally, a claim that has been denied in a final Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b) (2012). The exception to this rule is if new and material evidence is presented or secured with respect to a claim that has been disallowed. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran requested reopening of his claim for an acquired psychiatric disability in October 1986 and January 1991. In both instances, the RO found that no new and material evidence had been submitted adequate to reopen the claim for service connection for a psychiatric disability and notified the Veteran. The Veteran did not appeal these rating decisions. In October 2007, the Veteran again requested reopening of his claim of service connection for an acquired psychiatric disability. A February 2008 rating decision denied the request to reopen the claim of service connection for an acquired psychiatric disability as no new and material evidence had been submitted. The Veteran did not perfect a timely appeal of this decision so the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As such, the February 2008 rating decision is the last final disallowance of this claim. The evidence before VA at the time of the February 2008 rating decision consisted of the Veteran's service treatment records, including a medical board report, private treatment records from Hato Rey Psychiatric Hospital, a December 1990 private treatment note from Dr. C.R.L., a December 1991 private treatment note from Dr. J.G., the Veteran's lay assertions, an August 1980 lay statement from the Veteran's teachers, and a February 1982 lay statement from his cousin. The evidence associated with the claims file following the February 2008 rating decision consists of VA Medical Center treatment records dated from 2008 to 2012. The VA medical records show continued treatment for a psychiatric disability. These records document that the Veteran has a current disability. However, the existence of a current disability was established in the March 1983 Board decision. As this evidence does not relate to an unestablished fact necessary to substantiate the claim, it is not material. Other than reiterating his previous assertions, the Veteran has not offered any new evidence that reflects that his psychiatric disability did not clearly and unmistakably exist prior to service or that his disability was aggravated in service. After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran's claim of service connection for an acquired psychiatric disability has not been received, and the claim may not be reopened. The VA treatment records submitted were new in that they were not previously before the Board. However, none of this evidence is material for purposes of reopening the service connection claim. Therefore, the claim may not be reopened, and the appeal must be denied. There is no reasonable doubt to be resolved as to reopening the claim. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). (CONTINUED ON NEXT PAGE) ORDER New and material evidence has not been received to reopen the claim of service connection for a back disability, and therefore the appeal is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs