Citation Nr: 21024799 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 19-19 414 DATE: April 26, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for an acquired psychiatric disability is denied. FINDINGS OF FACT 1. The Board issued a final decision in March 1973, denying service connection for an acquired psychiatric disability on the basis that the disability existed prior to service and was not aggravated by service; in November 1978 and May 1991, the Board issued final decisions denying reopening of the claim of service connection for psychiatric disability as no new and material evidence had been submitted. 2. In May 1992, the United States Court of Appeals for Veterans Claims (Court) affirmed the May 1991 Board decision which denied reopening of the claim of service connection for an acquired psychiatric disability because no new and material evidence had been submitted. 3. Evidence received since the May 1991 Board decision includes information that was not previously considered, but which does not relate to an unestablished fact necessary to substantiate the claim of service connection for psychiatric disability. CONCLUSIONS OF LAW 1. The May 1991 Board decision denying reopening of the claim service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has not been received to reopen the claim of service connection for an acquired psychiatric disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA). By way of history, the Veteran’s claim of service connection for psychiatric disability (characterized as a nervous disability) was before the Board in March 1973, and the Board denied the claim on the basis that the disability existed prior to service and was not aggravated by service. The issue was before the Board again in November 1978 and the Board denied reopening the claim because new and material evidence had not been submitted. The issue was before the Board again in May 1991 and the Board again denied reopening the claim because new and material evidence had not been submitted. The Board’s March 1973, November 1978, and May 1991 decisions were final when issued. See 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100 (a) (a Board decision is final on the date stamped on the face of the decision). In a May 1992 Memorandum Decision, the Court affirmed the Board’s May 1991 decision. In March 2011, the Veteran requested that his claim of service connection for a nervous condition be reopened. A February 2013 rating decision was issued granting service connection for an anxiety disorder, among other conditions. However, it was later determined that the February 2013 rating decision was issued erroneously, and was a decision that concerned a different Veteran. As such, the February 2013 rating decision was never implemented. In February 2016, the Veteran requested that his award related to the February 2013 rating decision be issued. By way of an August 2016 letter, the agency of original jurisdiction (AOJ) advised the Veteran that his March 2011 application to reopen the claim of service connection for a nervous condition was being reviewed. In August 2016, the AOJ issued a rating decision denying reopening of the claim. The Veteran submitted a notice of disagreement in August 2017. In July 2018, the Veteran, through his representative, inquired as to why the February 2013 rating decision had not been implemented. In June 2019, a statement of the case was issued denying the application to reopen the claim of service connection for psychiatric disability and a letter was sent to the Veteran and his representative advising that the February 2013 rating decision was erroneous and had not been implemented. The Veteran submitted his substantive appeal in June 2019. The Veteran contends that new and material evidence has been received to reopen the claim of service connection for psychiatric disability and that the VA should afford him with a VA examination. New and material evidence to reopen the claim of service connection for an acquired psychiatric disability Generally, a claim which has been denied in a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). As a preliminary matter, the Board notes that the Veteran has not been afforded a VA psychiatric examination and a medical opinion pertaining to his claimed psychiatric disability has not otherwise been obtained. However, the duty to obtain an examination or medical opinion under 38 C.F.R. § 3.159 (c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board’s determination that claimant not entitled to reopening of claim). As explained below, the Board finds that no new and material evidence has been received with respect to the claim of service connection for psychiatric disability. Hence, there is no need to further discuss whether an examination and/or opinion is necessary. The evidence added to the record after the May 1991 Board decision includes medical reports, duplicate service treatment records, and a statement from the Veteran’s wife. At the outset, the Board notes that although the Veteran re-submitted service treatment records, these records are not new evidence as they are duplicates of medical evidence previously associated with the record. The Veteran contends that medical reports associated with the claims file since the final decision of the Board in May 1991 include statements from the Veteran that he only experienced hallucinations at the time of the 1970 diagnosis of schizophrenia when he cut his forearms with a knife. However, the November 1978 and May 1991 Board decisions addressed this contention, explaining that the Veteran clearly stated in September 1970 that prior to service he had a history of fascination with blood, along with hallucinations and suicide attempts. Additionally, the August 2001 progress note, referred to by the Veteran’s representative, does not demonstrate that the Veteran did not have hallucinations prior to service, but that he was having a hallucination telling him they wanted to see blood. This statement is consistent with the service treatment records and the previous findings of the Board; and does not indicate an aggravation, but a continuing condition that was shown to pre-exist the Veteran’s entrance into military service. The November 1978 Board decision specifically determined that new statements from the Veteran and others did not materially alter the evidentiary foundation upon which the March 1973 Board decision was predicated because the evidence of record clearly establishes the Veteran had a preexisting psychiatric disorder. Consistent with the November 1978 determination, the May 1991 Board decision determined that reports of current treatment were not pertinent to the issue of service connection. Therefore, the contention that the Veteran’s acquired psychiatric disability began during military service or increased in severity during military service has previously been addressed by the prior final Board decisions. Any new statement by the Veteran reiterating this contention is redundant and does not represent new evidence. Furthermore, as discussed in the previous Board decisions, current medical evidence is simply not as probative as the contemporaneous service treatment records from September 1970, and new medical records do not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The Veteran’s wife submitted a new statement, and the Veteran contends this is new evidence sufficient to reopen the claim. Although this statement is new, the wife’s statement does not provide any material evidence as her statements refer to the Veteran’s condition after he was separated from military service. As such, it does not demonstrate that the Veteran’s psychiatric disability was aggravated by his military service, and therefore, it does not relate to an unestablished fact necessary to substantiate the claim, nor does it raise a possibility of substantiating the claim. See Id. Accordingly, there is no new competent evidence that the claimed psychiatric disability did not exist prior to service, or was otherwise caused or aggravated by service. In other words, the Veteran has not submitted any new evidence indicating that his psychiatric disability was incurred in or aggravated by service, and neither he nor his representative has alluded to the existence of any such evidence. Also, to whatever extent the lay assertions are being offered to establish that the Veteran’s psychiatric disability either did not exist prior to service or was otherwise caused or aggravated by service, these contentions had already been presented and considered as part of the prior final Board decisions. Overall, the evidence submitted since the final May 1991 Board decision is either duplicative or cumulative of the evidence previously of record, or, if new, either does not relate to an unestablished fact necessary to substantiate the claim, or does not raise a possibility of substantiating the claim. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. Shade v. Shinseki, 24 Vet. App. at 110 (2010). Reopening of the claim for an acquired psychiatric disability is not warranted as the Veteran has not met that threshold. Furthermore, while VA has an obligation to assist the Veteran in the development of his claim, it is the Veteran’s responsibility to present and support a claim of service connection. 38 U.S.C. § 5107 (a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). As the Veteran has not identified or presented any new and material evidence pertaining to his claim of service connection for psychiatric disability, the application to reopen this claim must be denied. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim under consideration, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.