Citation Nr: 0524738 Decision Date: 09/12/05 Archive Date: 09/21/05 DOCKET NO. 99-11 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as major depressive disorder, bipolar disorder, anxiety disorder, panic disorder and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from September 1973 to October 1974. This appeal arises from a November 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the veteran's request to reopen his claim for service connection for an acquired psychiatric disorder and service connection for PTSD. The Board of Veterans' Appeals (Board) in the March 2002 remand explained that the RO had issued the veteran a statement of the case only as to the issue of service connection for PTSD. The Board remanded the veteran's request to reopen his claim for service connection for an acquired psychiatric disorder for the RO to issue a statement of the case addressing that issue. When the veteran has initiated appellate review by submitting a notice of disagreement and the RO has not issued a statement of the case to the veteran, the Board must remand the claim to the RO for a statement of the case to be issued. Manlincon v. West, 12 Vet App. 238 (1999). In November 2004, a statement of the case addressing the issue of whether new and material evidence had been submitted to reopen the claim for service connection for an acquired psychiatric disorder was issued to the veteran. In January 2005, the veteran through his representative submitted a VA Form 646 which the Board accepts as the veteran's substantive appeal as to that issue. In Barnett v. Brown, 8 Vet. App. 1 (1995) the United States Court of Appeals for Veterans Claims (Court) instructed that the Board of Veterans' Appeals must initially address the issue of whether or not new and material evidence has been submitted to reopen a claim in cases where there is a prior final decision. See also McGinnis v. Brown, 4 Vet. App. 239 (1993). The Board is satisfied as to the RO's compliance with its instructions from the prior remands. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The RO denied service connection for a nervous disorder, including suicidal depression, a in a November 1996 rating decision. The veteran did not appeal that decision. 2. The RO denied the veteran's application to reopen his claim for service connection for a nervous disorder in November 1998. The veteran appealed the November 1998 rating decision to the Board. 3. The evidence submitted since the November 1998 rating decision is not cumulative or redundant of evidence already in the claims folder. It is so significant that it must be considered in order to fairly consider the claim on the merits. 4. The service medical records reveal the veteran had psychiatric symptoms in service including sleep disturbance, hearing voices, flattened affect, and emotional distance. 5. Competent medical evidence has linked the currently diagnosed acquired psychiatric disorders, including major depressive disorder, bipolar disorder, anxiety disorder, panic disorder and PTSD, to service. CONCLUSIONS OF LAW 1. The November 1996 RO decision, denying the veteran's claim for service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. §§ 3.104, 20.1103 (1996). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1996). 3. An acquired psychiatric disorder, variously diagnosed as major depressive disorder, bipolar disorder, anxiety disorder, panic disorder and PTSD, was incurred in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As a preliminary matter, the Board finds that VA has satisfied its duties to the appellant under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). The implementing regulations also redefine "new and material evidence" and clarify the types of assistance VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(c). The provisions of 38 C.F.R. § 3.156 were changed only for claims filed on or after August 29, 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.156 (2004)). The veteran's claim was filed prior to August 29, 2001; consequently, the version of § 3.156 in effect before August 29, 2001 applies. As the decision below grants service connection for an acquired psychiatric disorder, the veteran has received all the notice and assistance outlined by VCAA. See generally Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Relevant Laws and Regulations. 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). A Notice of Disagreement shall be filed within 1 year from the date of mailing of notification of the initial RO review and determination; otherwise, that determination will become final and is not subject to revision. The date of the letter of notification will be considered the date of mailing for the purposes of determining whether a timely appeal has been filed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104(a) (1998). Except in the case of a simultaneously contested claim, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302 (2004). Under 38 U.S.C.A. § 5108, VA must reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 7105(c) and Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) (1998) provides as follows: 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v. West, 12 Vet. App. 369 (1999) the United States Court of Appeals for Veterans Claims (Court) held that the prior holding in Justus that the evidence is presumed to be credible was not altered by the decision in Hodge. To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of Sec. 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(2004). Factual Background and Analysis. The evidence included in the claims folder in November 1996 was limited to the veteran's service medical records and hospital records from VA for the period from August to November 1996. Service medical records reveal no psychiatric defects were noted at service entrance in September 1973. April 1974 service medical records include a psychiatric evaluation. The evaluation reveals the veteran gave a vague rather bizarre account of his behavior. He reported hearing both his father's and his mother's voices. He was having difficulty adjusting to military life. He was lonely and homesick. His sleep was disturbed and he was losing weight. He had a longstanding history of drug abuse. He was quiet and vague. His affect was flattened and he was distant emotionally. There was no evidence of gross psychotic ideation or delusions. The assessment was probable situational depression with an inadequate personality, rule out thought disorder. A psychiatric follow up in May 1974 noted the veteran had symptoms of flashbacks and occasions of feeling depressed. June 1974 service medical records included a recommendation that the veteran be separated from the service due to a longstanding personality disorder. VA records of hospitalization from August to November 1996 included diagnoses of depressive disorder, bipolar disorder and a personality disorder. The veteran was hospitalized due to constant suicidal thoughts, depression and an inability to concentrate. The RO in a November 1996 rating decision denied service connection for a nervous disorder, claimed as suicidal depression. The RO sent a letter to the veteran in December 1996 which notified him his claim had been denied. The correspondence received from the veteran during the following year was limited to addressing questions related to his receipt of VA non-service connected pension benefits. The veteran did not submit a notice of disagreement with the November 1996 rating decision. Therefore, the November 1996 rating decision became final. 38 C.F.R. § 3.104(a)(1996). In April 1998, the veteran requested that his claim be reopened and raised a new claim for service connection for PTSD. In support of his claim, he submitted two statements from J.A and D.M. They stated they had served with the veteran in the Marine Corp and had observed him being choked during training as part of a training demonstration. They both remembered the veteran was used to demonstrate close combat and was choked using a rubber hose until he was unconscious. The veteran also submitted his own statement reporting the incident during basic training when he was used to demonstrate close combat and was choked until he was unconscious. A VA examination in September 1998 included diagnoses of bipolar disorder, polysubstance abuse (currently in remission) and a personality disorder. In the opinion of the VA examiner the choking incident in boot camp had a significant impact on the veteran, but his symptoms did not meet the criteria for a diagnosis of PTSD. Based on the above, the RO denied the veteran's request to reopen his claim for service connection for an acquired psychiatric disorder and service connection for PTSD. The veteran appealed that rating decision to the Board. In response to the Board remand, the RO obtained the veteran's records from the VA Medical Center at Iron Mountain. They included an evaluation by a VA Social Worker in June 1999, which resulted in diagnoses of chronic depression with psychotic features, chronic anxiety, a history of substance abuse, and a personality disorder. A Psychosocial Assessment performed by Gogebic County Community Mental Health Services in April and May 2000 included diagnoses of major depressive disorder, with moderate psychotic features; anxiety disorder with features of panic disorder; generalized anxiety disorder; post traumatic stress disorder; and a personality disorder. A VA examination of the veteran was conducted in August 2004. Major depression (rule out bipolar disorder), an anxiety disorder with features of PTSD, and panic disorder with agoraphobia, and polysubstance abuse in remission were diagnosed. A personality disorder with borderline traits was diagnosed by history. In the opinion of the VA psychologist, it was difficult to determine the precise etiology of the veteran's symptoms. However, it was at least as likely as not that the veteran's traumatic experience in the military at least partially contributed to his depression, anxiety and general problems with adjustment. The evidence submitted since November 1996 is new. The VA records, the VA examination report of August 2004, and the Psychosocial Assessment performed by Gogebic County Community Mental Health Services in April and May 2000, were not previously in the claims folder. They are relevant to the issue of service connection for an acquired psychiatric disorder. The additional evidence is significant since it not only addresses the diagnoses of current acquired psychiatric disorders, it also addresses the issue of the causal relationship between the currently diagnosed acquired psychiatric disorders and service. As new and material evidence has been submitted, the claim for service connection for an acquired psychiatric disorder must be reopened. 38 C.F.R. § 3.156. Service Connection After reviewing the evidence, the Board has concluded the veteran manifested symptoms of depression and anxiety in service. When as in this case there is evidence of symptoms of anxiety in service there is no necessity for verifying in- service stressors. The verification of stressors is necessary to provide a nexus between current psychiatric symptoms and service when the disorder was not manifested in service. Nevertheless, the Board notes the veteran has provided corroboration of his claimed non-combat stressors. See Patton v. West, 12 Vet. App. 272 (1999). He submitted statements from two fellow Marines who corroborated the veteran's account of being choked during a close combat demonstration in service. Although the psychologist in April and May 2000 and the VA psychologist in August 2004 differed as to the correct current diagnoses, they both concurred that psychiatric symptoms were manifested in service and that the stressful events recounted by the veteran played a role in the veteran's current depression and anxiety. The regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2004). Although the service medical records contain diagnosis of a personality disorder, the current records and records of VA treatment during the 1990's have consistently included diagnoses of acquired psychiatric disorders. The Board notes that service connection may not be granted for personality disorders or for disability that is the result of abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(c), 4.9 (2004); See Winn v. Brown, 8 Vet. App. 510, 516 (1996). The evidence demonstrates the veteran had psychiatric symptoms in service, which competent medical professionals have stated are causally related to the veteran's current acquired psychiatric disorders. ORDER As new and material evidence has been submitted, the claim for service connection for an acquired psychiatric disorder is reopened. Service connection for an acquired psychiatric disorder, variously diagnosed as major depressive disorder, bipolar disorder, anxiety disorder, panic disorder and PTSD, is granted. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs