This is аn appeal from an October 1, 1997, decision of the Board of Veterans’ Appeals (BVA or Board) which, inter alia, (1) found that new and material evidence had not been presented to reopen a claim for post-trau
I. BACKGROUND
The appellant, Elmer Winters, served in the U.S. Army from April 1968 to November 1969. Record (R.) at 59. He is currently service connected for “schizophrenia, chronic undifferentiated type” rated at 100% disabling, as well as for residuals of a back injury, rated at 20%. See R. at 4. Claims for PTSD were denied by the BVA in 1987 on the basis that “a disability manifested by PTSD was not shown by the evidence then of record.” See R. at 11 (the 1987 BVA decision was not included in the record on appeal). The appellant filed a claim for peripheral neuropa-thy in November 1994, alleging that the condition should be service cоnnected by virtue of exposure to Agent Orange in Vietnam. R. at 299. The BVA found the claim to be not well grounded because the appellant had no current diagnosis of, nor has he ever been diagnosed with, peripheral neuropathy. R. at 9-10.
With respect to the PTSD claim, the BVA reviewed the evidence submitted since 1987, including lay tеstimony, (R. at 449), statements from the veteran, (R. at 299-302), private medical records, (R. at 140-67), VA medical records of inpatient and outpatient psychiatric treatment, (R. at 210-62, 349-66) and administrative records pertaining to the veteran’s time in service (R. at 251-60). The BVA noted that although the evidence extensively discussed the appellant’s trеatment for schizophrenia, mostly in state mental and criminal facilities, none of the evidence provided a diagnosis of PTSD. The BVA concluded: “[T]he evidence associated with the claims file subsequent to the March 1987 Board decision, denying service connection for PTSD, does not tend to show that the veteran currеntly manifests PTSD, and therefore does not raise a reasonable possibility of changing the outcome of the claim on the merits.” R. at 4.
This appeal followed. In his informal brief, the appellant argues that the BVA failed to apply the combat presumption found at 38 U.S.C. § 1154(b). He also states that a physician, Dr. Cupala, included in his diagnosis a statement that the appellant suffered from nightmares and flashbacks about Vietnam. The appellant further claims that VA failed to obtain medical records from the VA Medical Center at Wade Park regarding he-molytic anemia. The appellant did not press the financial assistance claim оn appeal and, therefore, that claim will be deemed abandoned. See Williams v. Gober,
The Secretary responds in his motion that (1) the appellant has not met the criteria for a well-grounded claim for peripheral neuro-pathy; (2) the combat presumption is not a presumption of service connection and that a current diagnosis is still necessary; (3) although various treating physicians have noted the veteran’s complaints of nightmares, none has diagnosed him with PTSD; and (4) the records regarding hemolytic anemia are irrelevant to the present appeal.
II. ANALYSIS
A. Claim for PTSD
1. Reopening Finally Denied Claims
Where, as here, a final Board decision exists on a given claim, that claim “may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered” by the Board. 38 U.S.C. § 7104(b). Similarly, when a claim is denied by the RO, and the claimant fails to timely appeal by filing an NOD within the one-year period following the decision as prescribed in 38 U.S.C. § 7105(b)(1), that decision becomes final and the claim may not “thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with” title 38 of the United States Code.
The exception tо these rules states that “[i]f 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. § 5108; see also 38 U.S.C. § 7104(b); Spencer v. Brown,
2. Manió Two-Step Becomes Three
In Manio v. Derwinski
The element added by Elkins today, a determination as tо the well-groundedness of the newly reopened claim, is now necessary because, prior to Hodge, the requirements of a well-grounded claim were lower than the requirements of new and material evidence under the test announced in 1991 by Colvin v. Derwinski 1 Vet.App. 171 (1991). Robinette,
3.Standard of Review
The Court today also holds in Elkins that “new-and-material-evidenee dеterminations generally will now be reviewed under a deferential ‘clearly erroneous’ standard.”
Whether a claim is well grounded is an issue that this Court reviews de novo without deference to the BVA. See 38 U.S.C. § 7261(a)(1); Grivois v. Brown,
4.Prejudicial Error and Futility
There is no question that Hodge changed the controlling law and that the Colvin test has been replaced by a less restrictive standard which places emphasis upon the language of 38 C.F.R. § 3.156(a). That provision requires only that the newly submitted evidеnce “bear[ ] directly and substantially upon the specific matter under consideration ... [and] be so significant that it must be considered in order to fairly decide the. merits of the claim.” It is for this reason that the Court today remands in Elkins, i.e., to permit the BVA to apply § 3.156(a) and Hodge and to determine if new and material evidence has been presented under this less restrictive test and, if so, to determine whether the newly reopened claim is well grounded.
The case presently before us presents for consideration two additional issues that are not present in Elkins. The first pertains to the rule of prejudicial error and the second to the principle that the law does not require a useless аct. The Court is required by statute to “take due account of the rule of prejudicial error.” 38 U.S.C. § 7261(b); Luallen v. Brown,
5.Application of Law to Facts
Both concepts arе relevant under the facts of this case. The appellant’s claim for PTSD was denied by the Board in 1987 on the ground that evidence of PTSD symptoms was not contained in the record and
The evidence submitted since that 1987 decision included lay testimony and statements from the veteran, private medical records, VA records of inpatient and outpatient psychiatric treatment, and administrative records pertaining to the veteran’s time in service. In its October 1, 1997, decision, the BVA found that the additional evidence failed to include any evidence of a diagnosis of PTSD. Applying the then-controlling Colvin test, the BVA concluded that new and material evidence had not been presented because the evidence did “not raise a reasonable possibility of changing the outcome of the claim on the merits.” A rеview of the record reveals that the evidence proffered by the appellant extensively discusses his diagnoses and treatment for schizophrenia, but that none of the new evidence provides a diagnosis of PTSD. Thus, presuming the truthfulness of the evidence in support of the claim, see Robinette, supra; Justus v. Principi,
Here, unlike in Elkins, even if the BVA were to conclude that new and material evidence had been submitted under Hodge and thе appellant’s claim were to be reopened, there simply is no way as a matter of law that he could prevail. Upon a review of all the evidence of record, the new as well as the old, in support of the claim, the Court concludes that it is clear that the appellant has not met and could not meet his burden under 38 U.S.C. § 5107(a) to submit a well-grounded claim because he has not submitted any evidence at any time showing that he has a current PTSD disability.
Under these circumstances, a remand would unnecessarily impose additional burdens upon the BVA with no possibility of any benefit flowing to the veteran. See Soyini and Sabonis, both supra. Further, even if the Court were to hold that the Board “еrred” by its understandable failure to predict the downfall of Colvin, any such “error” would not have been prejudicial to the appellant’s claim because it is clear that the claim would, again, not be well grounded. 38 U.S.C. § 7261(b). Accordingly, to the extent that it constituted a denial of benefits for PTSD under 38 U.S.C. § 7104(d)(2), the decision of the BVA must be affirmed. See Laruan v. West,
B. Claim for Peripheral Neuropathy
As noted before, the aрpellant has a responsibility to submit a well-grounded claim, which in general requires medical evidence of a current disability, evidence of an incurrence or aggravation of the disability in service, and medical evidence of a nexus
III. CONCLUSION
Upon consideration of the record, the appellant’s informal brief, and the Secretary’s motion for summary affirmance accepted in lieu of a brief, the Court holds that the appellant has not demonstrated that the Board committed either factual or legal error which would warrant reversal or remand. Gilbert v. Derwinski,