Citation Nr: 0213993 Decision Date: 10/09/02 Archive Date: 10/17/02 DOCKET NO. 02-05 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and a friend ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from January 1970 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Phoenix, Arizona. In connection with his appeal, the veteran testified at a hearing in Phoenix, Arizona before the undersigned in June 2002. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. In an April 1981 rating decision, the RO declined to reopen a claim of entitlement to service connection for a nervous condition. 2. The evidence received subsequent to the RO's April 1981 decision includes evidence which is neither cumulative nor redundant and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The April 1981 denial of entitlement to service connection for a nervous condition is final. 38 U.S.C.A. § 7105 (West Supp. 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2001). 2. New and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disability. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2002); 38 C.F.R. § 3.156 (a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During the pendency of this appeal the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp. 2002). This act identifies and describes duties on the part of VA to advise a claimant of the evidence needed to substantiate a claim and to help a claimant obtain that evidence. The duties to notify and assist claimants have been implemented by regulations published at 66 Fed. Reg. 45620 (Aug. 29, 2001). In this case, the RO has obtained the veteran's service medical records, pertinent medical treatment records, and conducted VA examinations. The RO issued a statement of the case in January 2002 which set out the applicable law and regulations. The veteran was specifically told that he needed to submit new and material evidence to reopen the psychiatric disability claim. VA also informed the veteran that it would help him secure records if he identified a source that held pertinent evidence. Probative evidence, not included in the file, has not been identified. Since there is no identified probative evidence which remains outstanding, it is not possible for VA to notify the appellant of evidence he should obtain or evidence that VA would attempt to obtain in connection with this claim to reopen. Cf. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In sum, the Board finds that VA has complied with the notice provisions of VCAA. The veteran's service medical records were reviewed. The entrance examination was negative for any findings, treatment, or diagnoses of a psychiatric disorder. In a November 1970 treatment record, the veteran had reported that he had previously been in an automobile accident in May 1970, and had been nervous since that time. The impression was anxiety. November 1970 treatment records reveal that the veteran received a psychiatric evaluation. No psychosis or neurosis was found. The veteran's condition was described as an inadequate personality in an immature individual. The veteran was cleared psychiatrically based on no evidence of a psychosis and an administrative separation was recommended. In a February 1971 mental hygiene consultation, it was noted that the veteran was referred for psychiatric clearance prior to possible administrative separation because of his inability to adapt to the military. His family background was described as very unstable and it was stated that he joined the service to avoid being sent again to another foster home. It was noted that the veteran enlisted in service in February 1970 and completed basic training, but while in advanced individual training, he deserted and went AWOL on numerous occasions. There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. The discharge examination was negative for any findings, treatment, or diagnoses of a psychiatric disorder. A hospitalization report dated from March to April 1975 from the Katherine Hamilton Mental Health Center reveals that the veteran was diagnosed with schizophrenia, borderline type. Hospitalization reports dated between August 1975 to January 1976 from Manatee Memorial Hospital show that the veteran was diagnosed with psychotic reactive depression, chronic organic brain syndrome secondary to drug abuse, and adjustment reaction of adult life. Medical treatment records dated from May to June 1978 from Monteagle Medical Center reveal a diagnosis of schizophrenia, chronic, undifferentiated type. In a VA hospital summary dated from December 1978 to January 1979, the veteran was diagnosed with anxiety reaction. The veteran underwent a VA psychiatric examination in May 1979 and was diagnosed with chronic schizophrenia, latent type. In a March 1980 psychiatric evaluation for the State of California Health and Welfare Agency, the veteran was diagnosed with schizophrenia, chronic, undifferentiated. A letter of medical treatment dated in January 1981 was received from Dr. Arthur B. Carfagni, Jr.. Dr. Carfagni stated that the veteran had been a patient of his since May 1978 and that during that time he has been hospitalized because of his overall mental state. He also stated that on several occasions in 1975 and 1976, the veteran was hospitalized in other states. In an April 1981 rating decision, the RO determined that new and material evidence had not been submitted to reopen a claim of psychiatric disability. It was noted that there was no evidence of a psychosis or neurosis in service. The veteran was notified of the RO's decision and of his appellate rights, but he did not perfect an appeal. The veteran underwent a VA psychiatric examination in May 1981. He provided a history of childhood problems which included going to several different foster homes and being mistreated. He stated that he went into service and continued to have problems. Following service, he continued to have psychiatric problems which included numerous hospitalizations. The diagnoses were chronic dysthymic disorder; and mixed personality disorder with some features of paranoid personality, schizoid personality and avoidant personality. The examiner commented that the veteran had a very long standing problem with both personality difficulties which made it hard for him to get along with people, and caused chronic depression. He also had anxiety related to these other two diagnoses. The examiner commented that the roots of this clearly seemed to be a rather unstable and unhappy childhood and that the veteran would have had major difficulties whether he went into service or not. The examiner noted that he did not have the claims folder to review and that perhaps there was some exaggeration of symptoms during that time, but the stage was clearly set way before the veteran entered the service. VA discharge summaries dated between October 1999 to May 2001 reveal that the veteran was hospitalized and treated for bipolar disorder and major depression. In an October 2000 statement, the veteran requested that his claim for service connection for major chronic depression be reopened. The veteran underwent a VA psychiatric examination in February 2001. The examiner initially noted that the claims folder had been reviewed and diagnosed the veteran with bipolar disorder. The examiner noted that the veteran gave a detailed history of his dysfunctional family with a mother who was frequently hospitalized, and a physically abusive father. The veteran stated that he a problem with depression and anger during his childhood. He admitted that the was very unhappy, briefly after his admission into service. He felt betrayed and was unhappy with what was going on because he was separated from the buddy that he wanted to be with. The examiner commented that it appeared that the veteran's current problem had its onset as a child and that there was no evidence that service aggravated it. The veteran, from the beginning, did not want to be a part of the service and went AWOL several times. The examiner stated that the veteran has bipolar disorder wherein he admits to having mood swings, having highs when he goes on a spending spree, spending money that he did not have, and having lows, getting himself very depressed. It was concluded that there was no evidence that this was identified in service. The veteran testified at a June 2002 hearing before the undersigned that he was not aware of any mental illness prior to joining the service. He stated that shortly after entering service, he started having stomach problems which were related to a psychiatric condition. He reported that since his discharge from the service in 1971 to the present time, he has been treated for psychiatric problems. He also stated that at the minimum, if he had a psychological disorder prior to service, the disorder was aggravated by service. He stated that he would try to obtain a medical opinion stating that his current psychiatric disorder either began in or was aggravated by service. Accordingly, the claim was held open for 45 days, however, the veteran did not submit any additional evidence. As noted above, in an April 1981 rating action, the RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for psychiatric disability. The veteran was notified of the determination and did not perfect a timely appeal. Absent the filing of a timely appeal a rating determination is final. 38 U.S.C.A. § 7105. If, however, 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. Pursuant to 38 C.F.R. § 3.156(a), 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. Thus, 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, when considered by itself or in connection with evidence previously assembled, it is not 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. If the evidence is determined to be both new and material, VA reopens the claim and evaluates the merits after ensuring that the duty to assist has been fulfilled. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by a claimant since the previously disallowed claim in order to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Since the April 1981 denial, evidence associated with the claims file consists of VA treatment records dated from October 1999 to May 2001, VA psychiatric examinations dated in May 1981 and February 2001, and testimony provided by the veteran at a June 2002 hearing before the undersigned Member of the Board. In particular, the February 2001 VA examiner opined that the veteran's current psychiatric disability, diagnosed as bipolar disorder, had its onset in childhood and there was no evidence that it was aggravated in service. As the evidence to reopen must merely "contribute to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision", Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Board finds that this new evidence bears directly and substantially on the question of service connection. Accordingly, as new and material evidence has been submitted, the claim of entitlement to service connection for a psychiatric disability is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for psychiatric disability is reopened. REMAND In Bernard v. Brown, 4 Vet. App. 384 (1993), the United States Court of Appeals for Veterans Claims held that the Board may adjudicate an issue notwithstanding the fact that the RO had not addressed the issue below. The Court held, however, that in such a case the Board must consider the question of whether the veteran had been given adequate notice to submit evidence and argument on the new issue and whether the veteran had been prejudiced by the Board's action in considering an issue not addressed by the agency of original jurisdiction. Id. at 394. If this has not been done, the matter must be remanded to the RO to avoid prejudice to the claimant. Id. at 393. In this case, the Board found new and material evidence to justify reopening the veteran's claim. In light of Bernard, however, the Board finds that it would constitute prejudice to the veteran for the Board to adjudicate the issue of entitlement to service connection on the merits in the first instance. Accordingly, the RO must adjudicate the issue on the merits and provide the veteran notice of their findings as appropriate. Therefore, this case is REMANDED for the following action: The RO should adjudicate the claim of entitlement to service connection for a psychiatric disorder on the merits. In so doing, the RO must ensure that all provisions of the Veterans Claims Assistance Act of 2000, have been fully complied with, to include complete notice of what actions VA would take and notice of what actions the appellant must take as defined in Quartuccio. Then, if the benefit sought on appeal remains denied a supplemental statement of the case must be issued, and the appellant afforded the appropriate period of time within which to respond. No action is required by the veteran unless he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). DEREK R. BROWN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.