Citation Nr: 1823745 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 14-28 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Karen L. DeMarco, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1977 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2017, the Veteran appeared and testified at a video Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issue of whether there is clear and unmistakable error (CUE) in a May 1978 rating decision has been raised in a June 2017 statement by the Veteran's attorney; however, this issue 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). FINDINGS OF FACT 1. A January 1981 rating decision continued the denial of the Veteran's claim for service connection for a nervous disorder and found that newly submitted evidence did not change the previous May 1978 rating decision that the Veteran's psychiatric disorder existed prior to service and was not aggravated by service. The Veteran did not appeal the January 1981 decision. 2. The evidence pertaining to the Veteran's acquired psychiatric disorder submitted subsequent to the January 1981 decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 1981 decision continuing the denial of service connection for a nervous condition is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. The criteria for reopening the claim for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.26(a) (2017). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran to procure service treatment records and additional private medical records identified by the Veteran, and also provide the Veteran any necessary examinations. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the Veteran's claim decided herein, the Veteran's attorney argues that the Veteran is entitled to a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, the Board notes that the duty to provide an examination is a "conditional or provisional duty." Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); see also 38 C.F.R. § 3.159(c) (2017). Accordingly, if it is determined that new and material evidence has not been presented to reopen a claim, VA's duty to provide a new examination is extinguished. Woehlaert, 21 Vet. App. at 463. In this case, it is determined that new and material evidence has not been received; thus, the issue of providing a VA examination is moot. II. New and Material Evidence The Veteran seeks to reopen his previously denied claim for entitlement to service connection for an acquired psychiatric disorder, previously claimed as a nervous condition. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Id. at 117-18. Additionally, new and material evidence received prior to the expiration of the appellate period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appellate period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than require new and material evidence. 38 C.F.R. § 3.156(c)(1). Here, the Veteran initially filed a claim for service connection for a nervous condition in May 1978. The Veteran's claim was denied in a May 1978 rating decision as the RO found the Veteran's psychiatric disorder to be a preexisting condition that was not incurred or aggravated by service. The Veteran subsequently filed a notice of disagreement, and a statement of the case (SOC) was issued in August 1978 continuing the denial of the Veteran's claim. The Veteran did not file a timely substantive appeal to the SOC. The Veteran filed an additional claim for entitlement to service connection for a nervous disorder in August 1980. In January 1981, the RO issued a letter to the Veteran continuing the denial of the May 1978 rating decision and found that newly submitted medical records did not warrant a change in the previous decision. The Veteran was also provided notice of his appellate rights. The Veteran did not subsequently file a notice of disagreement to the January 1981 decision. Accordingly, the January 1981 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In June 2012, the Veteran filed a claim to reopen his previously denied claim for service connection for an acquired psychiatric disorder. The only pieces of evidence that have been added since the January 1981 decision are the Veteran's testimony at the March 2017 Board hearing, and private outpatient treatment records. While this evidence is new, it is cumulative, redundant, and does not relate to an unestablished fact necessary to substantiate the claim, or raise a reasonable possibility of substantiating the claim. During the March 2017 Board hearing, the Veteran indicated that, prior to service, he was hospitalized for approximately 30 days as a teenager for a mental disorder. He also testified that he informed his recruiter of these prior conditions. The Veteran indicated that he was not being treated for a mental condition at the time of enlistment. He indicated that the intensive military training was very stressful for him and recalled his hospitalization during service for a psychiatric disorder. While these statements are new to the record, they are redundant of the evidence of record at the time of the last prior final denial of the claim, and therefore not material. See 38 C.F.R. § 3.156. For example, there are lay statements in the record that were submitted prior to the January 1981 decision where the Veteran claimed that his military service aggravated his nervous condition. However, the RO, considering this and the other medical evidence of record at the time, continued to deny the Veteran's claim in January 1981. Accordingly, the Board finds the Veteran's March 2017 Board hearing testimony to be cumulate and redundant of the evidence of record prior to the January 1981 decision. Further, the additional medical evidence of record does not relate to an unestablished fact necessary to substantiate the claim, or raise a reasonable possibility of substantiating the claim. The Veteran's claim was initially denied in May 1978 because the RO determined that the Veteran's psychiatric disorder was a preexisting condition that was not aggravated by service. These additional private out-patient medical treatment records relate to the Veteran's current medical treatment and therefore do not relate to an unestablished fact necessary to substantiate the Veteran's claim. Consequently, the Board finds that the evidence added to the record since the final January 1981 decision is cumulative and redundant of the evidence of record and does not raise a reasonably possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156(a). The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for an acquired psychiatric disorder may not be reopened. ORDER New and material evidence having not been received, reopening the claim of entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs