Citation Nr: 0611220 Decision Date: 04/19/06 Archive Date: 04/26/06 DOCKET NO. 03-01 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include the question of whether finality has attached to the rating decision entered on August 30, 1971, denying the veteran's original claim for service connection for an acquired psychiatric disorder? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from December 1967 to December 1970. This matter was most recently before the Board of Veterans' Appeals (Board) in March 2004, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, through the VA's Appeals Management Center (AMC) in Washington, DC. Such remand was to permit the AMC to undertake certain procedural and evidentiary development. Upon return of the case to the Board for further review, the matter under consideration has been expanded to include the underlying issue of the finality of the rating decision entered in August 1971 in which the veteran's original claim for service connection for an acquired psychiatric disorder was denied. Only the issue of whether finality has attached to the RO's August 1971 determination, denying entitlement to service connection for an acquired psychiatric disorder, is herein addressed on its merits. The remaining matter is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDING OF FACT Rating action of the RO on August 30, 1971, denying the veteran's original claim of entitlement to service connection for an acquired psychiatric disorder, was timely appealed within the requirements of governing law and regulations and such appeal, albeit unperfected, remains pending to this date. CONCLUSION OF LAW The RO's action of August 30, 1971, denying the veteran's original claim of entitlement to service connection for an acquired psychiatric disorder, is not final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminarily, it is noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), became law in November 2000. To implement the provisions of the VCAA, VA promulgated regulations now codified, in pertinent part, at 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2005). The VCAA has been the subject of various holdings of Federal courts, including Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006), which held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. However, as the disposition herein reached is favorable to the appellant to the extent indicated, the need to discuss VA's efforts to comply with the VCAA and its implementing regulations and jurisprudence at this juncture is obviated. The RO has developed this matter on the basis of whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. In so doing, the RO has held that VA previously had denied the veteran's original claim therefor in a final, rating decision entered on August 30, 1971. The undersigned herein addresses only the limited issue of whether finality has attached to the aforementioned August 1971 denial. By way of background, it is noted that the veteran initiated his original claim for service connection for an acquired psychiatric disorder in April 1971 and that the RO in a rating decision of August 30, 1971, denied such claim on the basis that only a personality disorder and not an acquired psychiatric disorder was shown in service. Notice of the denial was issued in September 1971, followed by the veteran's timely submission of a notice of disagreement in January 1972 in which he specifically indicated his intention to appeal. However, the RO at that time found, albeit incorrectly, that the veteran's January 1972 submission represented a claim to reopen and then proceeded to adjudicate it as such. Given that the veteran did not thereafter withdraw such appeal, finality did not attach to the RO's determination of August 30, 1971, denying the veteran's claim for service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. That fact renders void any and all subsequent rating determinations involving the veteran's entitlement to service connection for an acquired psychiatric disorder. It is therefore clear that the RO has erroneously developed this matter on the basis of whether new and material evidence has been presented to reopen a previously denied claim. Further actions are thus required to ensure initial consideration by the RO of the merits of the veteran's original claim, thereby affording him a more expansive review of the evidence than has been undertaken to date in determining his entitlement to the benefit sought. ORDER The RO's decision of August 30, 1971, denying the veteran's original claim of entitlement to service connection for an acquired psychiatric disorder, is not final. To that extent alone, the appeal is granted. REMAND As the veteran's original claim for service connection for residuals of an acquired psychiatric disorder remains pending, further consideration of such claim by the RO is required on a de novo basis. Remand to the RO is required to effectuate such consideration. Notice is also taken that the veteran has alleged that he was hospitalized in service at the 97th General Hospital in Frankfurt, Germany, for treatment of a psychiatric disorder; that the available service medical records are limited to reports of medical examinations conducted at service entrance and separation, as well as several dental records; and that attempts both recent and remote to obtain further service medical records have been unsuccessful. He also avers that he was court-martialed in service in December 1970, with pre- trial confinement occurring at the Army Stockade in Mannheim, Germany, and that he was found not guilty at trial due to the presence of a psychological disorder; efforts to date to obtain confirmation of the foregoing have been unsuccessful. Further efforts to obtain pertinent service medical and personnel records are needed until the RO/AMC determines, pursuant to the VCAA, that the records in question do not exist or that additional efforts to obtain same would be futile. Once such determination is entered, notice to the veteran as to the unavailability of service medical records under 38 C.F.R. § 3.159(e) is needed, and he must then be permitted to respond within a reasonable period. As well, in the event that additional service medical or personnel records are located, there exists a need for additional medical input. Notwithstanding the current absence of any showing of an acquired psychiatric disorder in service, the record reflects that, in April and May 1971, the veteran was evaluated and treated at a VA facility for extreme anxiety and tension, with a progress note in April 1971 indicating that he had reported having been treated in service for "nerves," including inpatient treatment at the 97th General Hospital in Germany. A VA neuropsychiatric examination in July 1971 yielded a diagnosis of an emotionally unstable personality, but such diagnosis was entered without the benefit of any military or other medical records of the veteran. The veteran at that time acknowledged that he had been treated in service by a psychiatrist. A period of VA hospitalization followed in January 1972 for treatment of a depressive neurosis, followed by further VA hospital care in April and May 1983 for treatment of an adjustment disorder with depressed mood, as well as substance abuse. VA examination in April 2004 resulted in a diagnosis of an anxiety disorder, not otherwise specified, and it was felt by the examiner that in the absence of available service medical records, no opinion regarding etiology of the veteran's anxiety disorder could be provided. A VA psychological examination in June 2005 yielded various diagnoses, including an anxiety disorder, not otherwise specified, and in the opinion of the examiner it would require resort to speculation to opine that any anxiety disorder of the veteran was present prior to 1971. In the event that additional service medical or personnel records are recovered on remand, further medical input from the VA examiners in 2004 and 2005 is deemed appropriate. Accordingly, this appeal is REMANDED for the following actions: 1. Consistent with the provisions of 38 U.S.C.A. §§ 5100, 5103 (West 2002); 38 C.F.R. § 3.159 (2005), the RO must notify the veteran what information and evidence are needed to substantiate his original claim of entitlement to service connection for an acquired psychiatric disorder, in addition to notice of the five elements of a service connection claim set forth in Dingess/Hartman v. Nicholson, Nos. 01-1917, 02-1506 (U.S. Vet. App. Mar. 3, 2006). The veteran must be notified of the portion of that evidence that VA will secure, and what portion he himself must submit. He must also be advised to submit all pertinent evidence not already on file that is held in his possession. If requested, VA will assist him in obtaining updated records of treatment from private medical professionals, or other evidence, provided that he provides sufficient, identifying information and written authorization. 2. The AMC or RO must undertake whatever efforts it deems necessary to obtain a complete set of the veteran's service medical and personnel records, including any existing records or data from supplementary sources confirming inservice treatment inclusive of hospitalization from May 1969 to December 1970 at the 97th General Hospital in Frankfurt, Germany, and a court-martial proceeding in December 1970 in which the veteran reportedly was found not guilty of being absent without leave due to a mental disorder. Such efforts must continue until the RO or AMC determines that the records sought do not exist or that further efforts to obtain same would be futile, and, if it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) must be provided to the veteran and he must then be afforded an opportunity to respond. 3. If any pertinent service medical or personnel records are obtained on remand which were not previously contained within the veteran's claims folder, the VA examination reports compiled in April 2004 by X. Zhang, M.D., and in June 2005 by J. Delamatre, Ph.D., must be returned to each respective examiner for the preparation of addenda, without further examination of the veteran, based on any additional service medical or personnel records secured. The claims folder in its entirety must be made available to and reviewed by the each examiner for use in the study of this case. Each examiner is asked to address the following, providing a supporting rationale where appropriate: Is it at least as likely as not that any acquired psychiatric disorder of the veteran had its onset during his period of active duty from December 1967 to December 1970 or is otherwise related thereto? Use by each examiner of the "at least as likely as not" language in responding is required. 4. Lastly, the AMC/RO must prepare a rating decision and readjudicate the veteran's original claim for entitlement to service connection for an acquired psychiatric disorder on the basis of all the evidence on file and all governing legal authority. If the benefit sought on appeal remains denied, the veteran and his representative must be provided with a statement of the case, which must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal. Notice must also be furnished to the veteran that in order to perfect his appeal of the August 1971 denial, he must submit to the RO or AMC a VA Form 9, Appeal to the Board of Veterans' Appeals, otherwise known as a substantive appeal, within 60 days of the mailing of the statement of the case. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet.App. 369 (1999). The purpose of this remand is to obtain additional development. No inference should be drawn regarding the final disposition of the claim in question as a result of this action. _________________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs