Citation Nr: 1541133 Decision Date: 09/24/15 Archive Date: 10/02/15 DOCKET NO. 09-07 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a psychiatric disorder, to include adjustment disorder and post-traumatic stress disorder (PTSD) (also referred to simply herein as a psychiatric disorder). 2. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans (DAV) ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1974 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Thereafter, the Veteran's claim was remanded in August 2012 in order to assess the feasibility of and attempt to schedule a Board hearing for the Veteran, who is incarcerated. As documented in the claims file, VA pursued available options for scheduling the hearing, but ultimately found that such a hearing was not possible. The Veteran's representative was offered an opportunity, as his power of attorney, to represent the Veteran at a hearing in which he was not present. However, DAV indicated that it was against policy to do so, and, instead, a VA form 646 would be submitted as final argument on the Veteran's behalf (See December 3, 2012 Report of Contact). In an April 2013 letter, the Veteran was advised of the efforts to schedule a hearing, provided regulations regarding holding Board hearings, and informed of DAV policy against representing a veteran who was not present at a hearing. DAV submitted a statement in support of the claim in May 2013. In June 2015, DAV submitted a post-remand brief specifically acknowledging the AOJ's finding that all avenues were exhausted to try to accommodate the Veteran's hearing request. DAV again confirmed that the AOJ requested that DAV represent the Veteran at a hearing without his presence but that such a request was against DAV policy and DAV "cannot comply with that request." Based on the foregoing, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). Although a Board hearing was not held, attempts were made to coordinate with the RO, the prison warden, and the Board in order to schedule a hearing. Further, the Veteran's representative was offered the opportunity to attend a hearing in the Veteran's absence but declined to do so. Instead, additional written arguments were submitted on the Veteran's behalf. Finally, the Board has not only viewed the Veteran's physical claims file, but also all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System to ensure a total review of the evidence. The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By a December 1983 rating decision, the RO denied entitlement to service connection for a personality disorder on the grounds that such condition was a constitutional or development abnormality that is not considered a disability under the law. The Veteran did not perfect an appeal, and that decision is now final. 2. Evidence received since the December 1983 rating decision contains a new diagnosis of a psychiatric disorder. Such evidence is not redundant and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 1983 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence has been received since the December 1983 rating decision to reopen the Veteran's claim for service connection for a psychiatric disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994), Justus v. Principi, 3 Vet. App. 510, 513 (1991). Here, the Veteran's claim for entitlement to service connection for a personality disorder was initially denied in November 1983 because such condition was a constitutional or development abnormality that is not considered a disability under the law. The Veteran then submitted a statement from his stepfather discussing his behavioral and emotional difficulties, but the RO continued to deny the claim in a December 1983 rating decision. Although the Veteran filed a Notice of Disagreement and a Statement of the Case was issued in January 1984, the Veteran did not file a VA Form 9 to perfect his appeal. Since the December 1983 rating decision, the Veteran has submitted additional medical evidence, to include VA treatment records. In August 2003 records, the Veteran was diagnosed with adjustment disorder and mixed anxiety/depression. Therefore, the additional evidence received since the December 1983 rating decision has not been previously submitted to VA and relates to an unestablished fact, namely, whether the Veteran has a psychiatric disorder for which service connection can be granted. Such evidence is not redundant and raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder. As a result, the evidence is new and material and the claim must be reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has been received to reopen service connection for a psychiatric disorder; to that extent only, the appeal is granted. REMAND The Veteran has reported various private mental health treatment, but such records (identified below) have not been requested or associated with the claims file. First, the Veteran indicated in a January 2002 VA Form 21-4142 treatment from Family and Child Treatment (FACT) of Las Vegas. Second, in a February 2007 statement, the Veteran indicated he was examined by a state licensed clinical psychologist "C.P.P." The Veteran stated that his evaluations showed "life-altering psychological damage related to my honorable service." Indeed, C.P.P. provided a statement in September 2005 stating that he regularly conducted psychological evaluations and psychotherapy at his office in Las Vegas, Nevada, with the Veteran. Third, in a March 2007 statement, the Veteran identified treatment with clinical sociologist "T.M.K." Fourth, the Veteran provided a consent form for civilian court records in Trumball County, Ohio, and identified Apple State Hospital in Ohio as providing psychiatric evaluations between 1975 and 1977. The Veteran has also reported VA treatment. Specifically, in his March 2008 Notice of Disagreement, the Veteran stated that he received treatment in Las Vegas in both 2002 and 2003. However, the only VA records associated with the claims file are those from Las Vegas from 2003, and it is unclear if any earlier treatment records from 2002 were requested. Therefore, the Veteran's complete VA treatment records from Las Vegas should be obtained upon remand. Furthermore, the Veteran's file includes an award for Supplemental Security Income (SSI). Although the letter does not specifically identify the basis of the award, the Veteran has made several assertions that his mental health symptoms have prevented him from working. Given that the Veteran's claim must be remanded to obtain both VA and private treatment records, the Board finds that requesting records from the Social Security Administration would also appropriate at this time. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records, to include records from Las Vegas Nevada from 2002 to present. All efforts to obtain these records should be documented for the claims file, and if they are ultimately deemed to be unobtainable, the appropriate memorandum for the file should be prepared. 2. Contact SSA and obtain a complete copy of any and all adjudications and the records underlying any adjudication for disability benefits. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. 3. Attempt to obtain and associate with the record the necessary authorization from the Veteran for the release to VA of all private clinical and/or hospitalization records pertaining to his psychiatric disorder, as identified by the Veteran, to include all records from the following: FACT of Las Vegas, psychologist C.P.P., sociologist T.M.K., and Apple Hospital. After obtaining any necessary release forms, all efforts to obtain such records should be fully documented and any records obtained should be associated with the record. All facilities must provide a negative response if records are not available and the Veteran and his representative should be informed of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5107A (West 2014); 38 C.F.R. § 3.159(c)(2014). 4. Upon completion of the above and review of any evidence obtained, undertake any further development deemed necessary, to include the procurement of a VA examination and/or opinion. Then, readjudicate the Veteran's claim. If the benefit sought is not granted, provide the Veteran with a supplemental statement of the case. Then return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs