Citation Nr: 0005568 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 96-48 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a chronic respiratory disorder manifested by a chronic cough and hiccups. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from October 1954 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which denied service connection for chronic cough and chronic hiccups and found a claim for service connection for "stress" to be not well grounded. This case was previously before the Board in October 1998 when it was noted that the veteran's claims had been previously denied by the RO in December 1982, and the RO had never discussed whether the evidence was new and material to reopen the veteran's claims. The case was remanded for application of the appropriate analysis for new and material evidence. The issues were also redefined as whether new and material evidence had been submitted to reopen a claim for an acquired psychiatric disorder and a claim for a chronic respiratory disorder manifested by a chronic cough and hiccups. Although the veteran was contacted and provided the opportunity to submit additional evidence, the veteran's claims were not readjudicated in accord with the remand instructions and the case was remanded again in May 1999. The RO reconsidered the claims on the basis of new and material evidence in an August 1999 supplemental statement of the case, finding that new and material evidence had not been submitted to reopen the claims, and the case was returned to the Board. In arguments submitted to the Board in August 1998, the veteran's representative claimed that the veteran endured "a great deal of racial prejudice" against him during his active service, singling out the actions of one particular senior officer. He added that due to the harassment he should be entitled to service connection for post-traumatic stress disorder as well as stress. The issue of service connection for post-traumatic stress disorder has not been the subject of a rating decision, and is not properly before the Board at this time. It is referred to the RO for action deemed appropriate. As entitlement to service connection for PTSD is governed by separate regulations specifically for such claims, the issue is not considered inextricably intertwined with the issue of whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder now on appeal. See 38 C.F.R. § 3.304(f) (service connection for PTSD); Harris v. Derwinski, 1 Vet. App. 180 (1991), 38 U.S.C.A. § 7105(c) (West 1991) (inextricably intertwined claims). The Board stresses that this decision only determines the issue of whether new and material evidence has been submitted to reopen a claim of service connection for an acquired psychiatric disorder, other than PTSD. FINDINGS OF FACT 1. Following a rating action by the RO in December 1982, the veteran was notified in a letter dated that same month that his claim for service connection for an acquired psychiatric disorder identified as a nervous condition, and his claim for a chronic respiratory disorder manifested by hiccups, bronchitis and emphysema were denied; although he was provided his appellate rights, he did not appeal. 2. No competent evidence has been presented since the December 1982 rating decision which is relevant to or probative of whether a psychiatric disorder was incurred in or aggravated during the veteran's active military service from October 1954 to May 1957 and which is so significant that it must be considered in order to fairly decide the merits of the claim. 3. Not competent evidence has been presented since the December 1982 rating decision which is relevant to or probative of whether a chronic respiratory disorder was incurred during the veteran's active military service from October 1954 to May 1957 and which is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The December 1982 decision of the RO denying service connection for an acquired psychiatric disorder identified as a nervous condition and service connection for a chronic respiratory disorder manifested by hiccups, bronchitis and emphysema manifested by a chronic cough and hiccups is final. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. § 3.160(d). 2. Evidence received since the December 1982 RO decision denying service connection for acquired psychiatric disorder and a chronic respiratory disorder manifested by a chronic cough and hiccups is not new and material, and the veteran's claim for service connection for an acquired psychiatric disorder and a chronic respiratory disorder manifested by a chronic cough and hiccups has not been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C.A. § 5108 (West 1991); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see Graves v. Brown, 8 Vet. App. 522, 524 (1996). The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. Barnett v. Brown, 8 Vet. App. 1 (1995). The Board is required to determine whether new and material evidence has been presented before it can reopen a claim and readjudicate service connection or other issues going to the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). When considering whether new and material evidence has been presented or secured to reopen a claim, the law provides, 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. 38 U.S.C.A. § 5108 (West 1991). Section 3.156(a) provides, New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (1999) (final emphasis added). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The claimant does not have to demonstrate that the new evidence would probably change the outcome of the prior denial which was the test in effect prior to the Hodge decision, as defined in Colvin v. Derwinski, 1. Vet. App. 174 (1991) (new and material evidence required "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the final decision). Rather, it is important that there be a complete record upon which the claim can be evaluated, and some new evidence which may contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability. Hodge 155 F.3d at 1363. In Elkins v. West, 12 Vet. App. 209 (1999) (en banc), the Court outlined a three-step process for reopening claims under the Federal Circuit's holding in Hodge, supra: First, VA must determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a). If the newly presented evidence is not "new," the claim to reopen fails on that basis and no further analysis of the evidence is required. Similarly, if "new" evidence is not "material," in the sense that does not bear directly and substantially upon the specific matter under consideration and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim, the claim to reopen fails on that basis and the inquiry ends. 38 C.F.R. § 3.156 (1999). Second, if new and material evidence has been presented, immediately upon reopening VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). There is no duty to assist in the absence of a well-grounded claim. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) cert. denied, sub nom. Epps v. West, 118 S. Ct. 2348 (1998). See also Winters v. West, 12 Vet. App. 203 (1999). Third, if the claim is well grounded, VA may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. See also Winters v. West, 12 Vet. App. 203 (1999) (en banc). Evidence received since the prior final decision is presumed credible for the purposes of reopening the veteran's claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3, Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 68, 75-76 (1995). Factual Background The veteran's claim was originally denied in December 1982 when the veteran was notified in a letter from the RO that his claim for compensation based on disability resulting from hiccups, bronchitis, emphysema and a nervous condition had been denied. He was informed that the record did not show that he received treatment for these conditions during service, and that, in effect, there was no evidence to show that the claimed conditions were incurred in or aggravated by active military service and still existed. The veteran was also informed of his appellant rights, but he did not appeal. In February 1994, the veteran was provided a VA compensation and pension examination pursuant to his claim for pension benefits. He was noted to be a long term heavy smoker or many years and had had a right partial lung resection following a rupture of emphysematous blebs. Aggravating his chronic obstructive pulmonary disease was a problem of chronic hiccups. He also had severe dyspnea on exertion. On examination, there was one brief episode of a wet cough. The diagnoses included severe chronic obstructive pulmonary disease, status post thoracotomy for ruptured emphysematous blebs. In July 1994, the veteran submitted an application for benefits for "stress", chronic cough and chronic hiccups. Submitted with the application were copies of his service medical and personnel records. In May 1995, a rating decision considered and denied on the merits a claim for service connection for a chronic cough and chronic hiccups. This rating decision also found a claim for service connection for "stress" to be not well grounded. The rating decision indicated that "stress" was not currently shown, that mental illness was not shown in service, and that the personality disorder which was shown in service was not a disease within the meaning of legislation applicable to veteran's benefits. As noted in the introduction to this decision, supra, because the December 1982 decision constituted a prior final decision on the claims for service connection for an acquired psychiatric disorder and a respiratory disorder, the claims were later redecided on the basis of whether new and material evidence had been submitted to reopen these claims. In March 1996, private medical records were received showing treatment from 1988 for, among other things, hiccups secondary to alcoholism, chronic fatigue, shortness of breath, bronchitis, emphysema, and status post surgery for a bleb on the right lung in 1988. The actual record of his hospitalization in September 1988 shows that he was admitted following an episode of binge drinking complaining of shortness of breath prior to admission. A March 1991 record is significant for a 20 year history of hiccups. In August 1991, his hiccups were noted to be of 25 years duration. In January 1992, he was assessed with acute bronchitis after complaining of a cough of 2 months duration. He was also treated several times for complaints of depression. Also received in March 1996 was a record of the veteran's hospitalization in August 1983 for alcoholism, following a three month period of drinking uncontrollably. During this admission, he was also diagnosed with chronic undifferentiated schizophrenic disorder, chronic obstructive pulmonary disease and intractable hiccups. The veteran was provided a VA aid and attendance examination in February 1998. His diagnoses were bipolar affective disorder, anxiety disorder due to pulmonary disease and severe chronic obstructive pulmonary disease and emphysema. Analysis Initially, the Board observes that the last final denial of the veteran's claims was the December 1982 rating decision. The specified basis for the denial was that there was no evidence that his claimed conditions were incurred in or aggravated by military service, by which the Board infers that there was a failure to show any evidence of a link or nexus between his claimed conditions and active service. Since this denial, the veteran has submitted copies of his service medical and personnel records, and records of his treatment dating from approximately 1988. The copies of service personnel and medical records are not new evidence because they were before the RO at the time of the December 1982 decision. The only new evidence is the postservice records of his medical treatment. Although this evidence is considered "new", it is not relevant to the incurrence in service of either an acquired psychiatric disorder or a respiratory disorder. In fact, the submitted medical records contain several references which by history provided by the veteran place the onset of his hiccups at no earlier than 25 years prior to 1991, or approximately 1966, well after his active service. These also show a diagnosis of hiccups secondary to alcoholism. Similarly, a January 1992 record shows treatment for bronchitis with a cough of 2 months duration, and his February 1998 VA aid and attendance examination relates his anxiety disorder to his pulmonary disease. To be material, the new evidence must be (a) relevant in that it bears directly and substantially on the matter under consideration, and (b) so significant, either by itself or with other evidence, that it must be considered in order to fairly decide the claim. 38 C.F.R. § 3.156(a) (1999). Because the post service records do not relate any of the veteran's psychiatric or respiratory disorders to active service, they do not bear directly and substantially on the matter under consideration and are not material to reopen the claims. The Board notes that the veteran's assertions that his disorders were incurred in service is neither material nor competent evidence. There is no evidence that he possesses the requisite medical knowledge to render a probative opinion on a matter requiring medical expertise. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette, 8 Vet. App. at 74; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board finds that the evidence received subsequent to December 1982 is not new and material and does not serve to reopen the veteran's claim for service connection for an acquired psychiatric disorder or a respiratory disorder manifested by coughs and hiccups. 38 U.S.C.A. §§ 5108 and 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). Where new and material evidence has not been submitted to reopen a finally denied claim, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Graves v. Brown, 8 Vet. App. 522, 524-25 (1996); Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Graves, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence which is not only relevant to his claims for an acquired psychiatric disorder and a respiratory disorder manifested by cough and hiccups, but is so significant that it must be considered in order to fairly decide the merits of the claims. 38 C.F.R. § 3.156 (1999). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). The benefit of the doubt doctrine need not be applied in the situation where an appellant has not fulfilled the threshold burden of submitting new and material evidence to reopen a finally disallowed claim. Annoni v. Brown, 5 Vet. App. 463 (1993). ORDER New and material evidence not having been submitted to reopen either a claim for entitlement to service connection for an acquired psychiatric disorder or a claim to entitlement to service connection for a chronic respiratory disorder, manifested by chronic cough and hiccups, the benefits sought remain denied. BETTINA S.CALLAWAY Member, Board of Veterans' Appeals