Citation Nr: 20021255 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-12 941 DATE: March 25, 2020 ORDER New and material evidence has not been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. Most recently, a June 2010 Board decision denied reopening a previously denied claim of service connection for anxiety disorder. 2. Evidence associated with the claims folder since the June 2010 Board decision is either cumulative or redundant of evidence previously considered or not material. CONCLUSIONS OF LAW 1. The June 2010 Board decision is final. 38 U.S.C. § 7103 (2012); 38 C.F.R. § 20.1100 (2019). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from September 1966 to August 1969. He also had National Guard service from August 1976 to January 1981, including active duty for training (ACDUTRA). This matter comes before the Board of Veterans’ Appeals from a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Board denied reopening the Veteran’s claim for an acquired psychiatric disorder. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued a memorandum decision, vacating the January 2018 Board decision for inadequate reasons or bases for failing to discuss the significance, if any, of the Veteran’s diploma that showed completion of one-year of training as a nurse. The case has been returned to the Board for review. The Board notes that the issue on appeal has been recharacterized as whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. In this respect, the Veteran’s original claim for service connection for anxiety neurosis was denied by a final May 1982 rating decision. However, the RO considered the Veteran’s psychiatric symptoms including depression, nervousness, and personality disorder – demonstrating that the RO did not limit its consideration to one diagnosis and found that the Veteran’s condition was not aggravated by his National Guard service. The Veteran has indicated that he is claiming increased compensation for PTSD, but did not describe any in-service stressor – instead asserting that his anxiety and nervousness was related to his National Guard training. The Veteran’s statement does not amount to a new claim as the May 1982 rating decision considered the broad scope of his psychiatric condition as well as the prior final June 2010 Board decision. See Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Further, the Veteran continues to seek service connection for a mental health disability, however variously claimed and diagnosed, as having been caused by his period of training during his National Guard service. New and material evidence is therefore required to reopen the Veteran’s claim for service connection for an acquired psychiatric disorder. Board decisions are generally final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. A finally adjudicated claim shall be reopened and reviewed if new and material evidence is presented or secured. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282 83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (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). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118, 124. In a May 1982 rating decision, the RO denied service connection for anxiety neurosis. The RO noted that the service treatment records from the Veteran’s first period of service were silent for a nervous condition and in July 1979 during his second week of National Guard training, the Veteran noted that he had been on medication for paranoia for several years. It was noted that he was examined and found disoriented and mildly depressed. In November 1980, he was discharged from the National Guard due to his depression and nervousness. The RO then stated that the Veteran was first diagnosed with anxiety reaction in October 1973 and was then treated for personality disorder and substance abuse. The RO found that the Veteran’s condition was not aggravated by active duty for training in the National Guard. The Veteran did not appeal that decision, new and material evidence was not received during the time period to appeal that decision, and it became final. 38 C.F.R. § 20.1103 (2019). Most recently, a June 2010 Board decision denied reopening the Veteran’s claim for anxiety disorder, previously claimed as anxiety, depression, and paranoid ideas. The Board noted the additional evidence received since the last final rating decision including VA medical treatment records, private treatment records, Social Security Administration records, and the Veteran’s statements and testimony. The Board noted the numerous medical records demonstrating continued treatment for psychiatric disability, but that the records did not provide evidence of aggravation. The Veteran did not appeal that decision to the Court. To the extent that he requested reconsideration of the decision, the Board sent an October 2011 letter to the Veteran stating that his motion did not comply with the Board’s Rules of Practice and the matter was dismissed. Therefore, the June 2010 Board decision is final and new and material evidence is required to reopen the claim. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. The evidence of record at the time of the Board’s June 2010 decision included the Veteran’s service treatment records, service personnel records, Social Security Administration records, VA examination report, VA and private treatment records, and the Veteran’s statements and hearing testimony. Evidence added to the record since the June 2010 Board decision includes the Veteran’s statements, nursing diploma, copy of a September 2002 VA treatment record, VA examination reports, VA treatment records, additional service personnel records, and copies of service treatment records. First, the Veteran’s submitted copies of service treatment records are identical to those that were of record at the time of the prior June 2010 Board decision and are not considered new and material evidence. Concerning the additional service personnel records that have been added to the record, they are related to the Veteran’s in-service military uniform and equipment usage and are not considered relevant service department records that would require de novo review of the claim. 38 C.F.R. § 3.156(c). The Veteran submitted a copy of a September 2002 private treatment record, but that record had already been associated with the record at the time of the prior final Board decision and does not serve as new and material evidence to reopen the claim. Concerning the updated VA treatment records added to the claims folder since the June 2010 Board decision, they continue to document treatment for the Veteran’s psychiatric disability. The VA treatment records show assessments of depression, adjustment disorder, anxiety disorder, and suicidal ideation. None of the records contain any indication from a physician that a current psychiatric disability was aggravated by the Veteran’s National Guard service – the basis for the denial of the original claim and the reason for denying reopening the claim in the prior final June 2010 Board decision. With respect to the VA examination reports added to the record, they are not relevant. The Board recognizes that the Veteran has continued to assert that his depression and anxiety onset and/or were aggravated by service. He states that he is competent to provide a medical opinion because of his training as a nurse and a medic. In August 2010, the Veteran stated that his depression worsened during his two weeks of training and never returned to his pre-training level. He stated that his proof consisted of his medical opinion and that he qualified as a medical expert by way of his medical training and nurse’s training. He submitted a copy of his nursing diploma that shows that he completed a one-year course of study in the School of Practical Nursing in March 1978. In October 2010, the Veteran stated that he could offer medical opinions and that his mental disease had its origin in 1979 in the National Guard when his anxiety was permanently aggravated. He stated that he was not a lay person and should be considered a medical expert. In August 2017, the Veteran provided a statement that he was employed at a VA hospital, but did not provide further detail. In a June 2018 VA mental health record, the Veteran reported that he worked as a medic in the National Guard and obtained his nursing degree and worked as a civilian nurse. In the prior final June 2010 Board decision, the Board specifically discussed the Veteran’s contentions that his psychiatric disability was related to service and his assertion that he was a medic and had the expertise to make an opinion that his disability was related to service. The Board noted that the Veteran’s service records did not reflect that he worked as a nurse or a medic, though the Veteran indicated that he had worked as a nurse’s aide from September 1974 to June 1983. The Board noted that the Veteran reported that he received medic and nurse training from February 1977 to March 1978 but averred that he had not been licensed as a nurse. The Board found that “even if the Veteran had some training as a nurse, there is no evidence of record that he has ever worked in the mental health field, taken courses in mental health, or been accredited as a mental health professional” and had not provided any rationale whatsoever as to how his preexisting mental disability was aggravated by service. Next, the Board noted that the Veteran had been diagnosed as suffering from paranoid schizophrenia and mild mental retardation and while he testified that he was a medic in the National Guard, the Board noted that service personnel records were negative for medical training during service and that he was an accounting clerk. The Board also noted the Veteran’s testimony that he first experienced anxiety while in the service, but that his medical records showed that he had been diagnosed with anxiety reaction and anxiety neurosis prior to that time. The Board found that the Veteran did not have the capacity to render a competent credible opinion as to whether his mental disability was aggravated by active service. The Veteran’s current assertions relating his psychiatric disability to service are essentially redundant of assertions that were of record at the time of the June 2010 Board decision. In this respect, the June 2010 Board decision noted the Veteran’s June 2004 hearing testimony that he began to suffer from anxiety when he served on active duty with the National Guard. Also, in November 2008, the Veteran stated that his current depression was related to his annual training in the National Guard and in June 2004, he testified that he first had anxiety during training with the National Guard. Moreover, in the June 2010 Board decision, the Board determined that the Veteran did not have the capacity and was not competent to provide a medical opinion. The Board found that even if the Veteran had training as a nurse, he was not competent to provide an etiological opinion as there was no evidence that he had any mental health training or worked in the mental health profession. The addition of the Veteran’s one-year nursing diploma to the record is new, but not considered material evidence. The diploma is not material because the diploma does not show that the Veteran had any training, expertise, or knowledge in mental health to be competent to provide an opinion as to the complex medical matter of the etiology of a mental health disability and whether it was aggravated by his period of training while in the National Guard. Though the Veteran had one-year of training as a nurse decades ago, such fails to demonstrate that he has any mental health expertise, knowledge, or experience to provide a medical opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran has not otherwise pointed to any evidence that shows that he worked in a mental health field, took courses in mental health, or was accredited as a mental health professional. Accordingly, the Veteran’s statements are not considered new and material evidence to reopen the claim. Further, while the Veteran has made recent statements that he received his license to practice as a nurse and worked as a nurse’s aide, in the prior final June 2010 Board decision, the Board noted that the Veteran reported that he had worked as a nurse’s aide and reported medic and nursing training, but that he also reported that he was never licensed. Accordingly, his recent assertions of working as a nurse are essentially redundant of those statements already considered by the prior final June 2010 Board decision. Finally, the Veteran reported in August 2017 that he works at a hospital without any other detail as to what type of occupation. In October 2019, the Veteran noted that he had not worked for more than 20 years and had worked in housekeeping at a VA Medical Center. His August 2017 statements is not considered material evidence as he did not provide any detail or description of this occupation or if it even relates to the matter on appeal. Considering the above, the Board finds that new and material evidence has not been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, and the appeal is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.