Citation Nr: 0810189 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 02-04 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder, to include PTSD, has been received. 2. Whether new and material evidence to reopen a claim for service connection for a back disability has been received. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 4. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from February 1970 to December 1971. These matters initially came before the Board of Veterans' Appeals (Board) from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied the veteran's petition to reopen his previously denied claims for service connection for a nervous condition and for chronic lumbosacral strain. In March 2003, the veteran and his spouse testified during a videoconference hearing before a Veterans Law Judge (VLJ) of the Board; a transcript of that hearing is of record. The VLJ who conducted the hearing is no longer at the Board. Consequently, the Board sent a January 2008 letter to the veteran informing him of this fact and asking if he desired another hearing before a different VLJ, and indicating that if he did not respond to the letter within 30 days, the Board would assume he did not want such a hearing and would proceed accordingly. See 38 U.S.C.A. § 7107(c) (West 2002 & Supp. 2007); 38 C.F.R. § 20.707 (2007). The letter was returned to the Board as undeliverable. As the address to which the letter was sent was the address provided by the veteran, and he has not submitted information indicating any new address, the Board will proceed under the assumption that the veteran does not want a new hearing. In April 2004, the Board remanded both petitions to reopen for additional development. That development included new VA examinations as to the etiology of the veteran's psychiatric and back disabilities. While the regulation authorizing a VA examination applies to a petition to reopen only if new and material evidence is presented or secured, 38 C.F.R. § 3.159(c)(4)(iii) (2007), the Board did not indicate that such evidence had been presented or that it had reopened the claims. Moreover, after completing the additional development, the Appeals Management Center (AMC), in a July 2007 supplemental statement of the case (SSOC), readjudicated the claims as petitions to reopen, finding that new and material evidence had not been submitted. Therefore, in the decision below, the Board will first address whether new and material evidence has been received warranting reopening of the claims. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996) (in adjudicating petitions to reopen, the Board must first determine whether new and material evidence has been presented). The Board's decision reopening the claims for service connection, which have been recharacterized as for a psychiatric disorder, to include PTSD, and for a back disability, is set forth below. The claims for service connection for a psychiatric disorder, to include PTSD, and for a back disability, on the merits, are addressed in the remand following the order; these matters are being remanded to the RO via the AMC, in Washington, DC. VA will notify the veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the petitions to reopen has been accomplished. 2. In February 1978, the RO denied the veteran's claims for service connection for a nervous condition and chronic lumbosacral strain. Although notified of that decision in a March 1978 letter, and apprised of his procedural and appellate rights, the veteran did not appeal either denial. 3. Some of the additional evidence received since that February 1978 decision is neither cumulative nor redundant and is so significant that it must be considered in order to fairly decide the merits of each claim. CONCLUSIONS OF LAW 1. The RO's February 1978 decision denying the claims for service connection for chronic lumbosacral strain and a nervous condition is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2007). 2. As new and material evidence has been received with regard to the claim for service connection for an acquired psychiatric disorder, the criteria for reopening that claim are met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 3. As new and material evidence has been received with regard to the claim for service connection for a back disability, the criteria for reopening that claim are met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). In view of the Board's favorable disposition of the petitions to reopen the claims for service connection for an acquired psychiatric disorder and a back disability, the Board finds that all notification and development action needed to fairly adjudicate these petitions has been accomplished. II. Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted in service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303(a) (2007). Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Evidence of current disability is one of the fundamental requirements for a grant of service connection. See, e.g., Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In February 1978, the RO denied the veteran's claims for service connection for a nervous condition and for chronic lumbosacral strain. Although notified of these denials in a March 1978 letter, the veteran did not initiate an appeal. Hence, that decision is final as to the evidence then of record. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007); see also Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998). In this appeal, the veteran's filed a request to reopen his claim in September 2000. The VCAA and implementing regulations revised the definition of what constitutes new and material evidence, but only as to petitions to reopen filed on or after August 29, 2001. See 66 Fed. Reg. 45,630 (Aug. 29, 2001). In this case, the veteran filed his petition to reopen in September 2000; thus, the former definition of new and material evidence at 38 C.F.R. § 3.156(a) applies. According to the old definition, new and material evidence means evidence not previously submitted to agency decisionmakers 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. 38 C.F.R. § 3.156(a) (2000). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation and case law cited above, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007) require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis 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). In the February 1978 rating decision, the RO denied the claim for a nervous condition because, based on the August 1977 VA examination, the evidence did not reflect the existence this disability. As to the claim for service connection for chronic lumbosacral strain, the RO noted multiple complaints of back pain in service, and normal findings on the separation examination. The RO did not explain its denial of this claim. It appears from the decision, however, that the denial was based on an absence of nexus between the chronic lumbosacral strain diagnosed on the August 1977 VA examination and the complaints of back pain in service. Since the February 1978 rating decision, there is evidence indicating that the veteran has a psychiatric disability. Specifically, VAOPT records and the February 2005 and May 2005 VA examination reports include diagnoses of major depressive disorder and PTSD. As this new evidence reflects that the veteran has been diagnosed with acquired psychiatric disorders including PTSD, and the absence of a currently diagnosed psychiatric disability was the basis for the prior denial of the claim, this evidence warrants reopening the claim. As to the claim for service connection for a back disability, the VAOPT and private medical records reflect that the veteran has been diagnosed with multiple back disabilities. Moreover, the physician who performed the May 2005 VA examination, and diagnosed the veteran with bulging of the annular that compressed the L5 roots, spondylosis, radiculopathies, and profusion compression, indicated that the veteran's low back pain "stemm[ed] from the military lifestyle in the 1970s." While this conclusion did not identify a particular back disability that was related to the veteran's military service (including the notations of back pain in the service medical records), this new evidence bears directly and substantially upon whether there is a nexus between a current back disability and service, and, by indicating the possibility of a relationship between a current back disability and service, is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for a back disability. The Board notes that a VA physician in February 2007 concluded that the veteran's current back disabilities were not likely related to service, and that two VA physicians offered conflicting opinions as to the etiology of the veteran's major depressive disorder and PTSD in February 2005, May 2005, and January and February 2007. However, the weighing of this and other medical evidence should be performed by the RO in readjudicating the reopened claims after undertaking the development discussed below. For the foregoing reasons, the Board concludes that the criteria for reopening the claims for service connection for an acquired psychiatric disorder, to include PTSD, and for a back disability are met. See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). ORDER To the limited extent that new and material evidence to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, has been received, the appeal is granted. To the limited extent that new and material evidence to reopen the claim for service connection for a back disability has been received, the appeal is granted. REMAND In a December 2003 statement in support of claim (VA Form 21- 4138), the veteran wrote, "I am enclosing evidence I got from Social Security concerning my disabilities." The attached document was an August 2002 "diagnostic evaluation" from the Carolinas Center for Advanced Management of Pain, which indicated that the veteran presented for "evaluation of chronic and diffuse medical problems coupled with a significant psychiatric history." The evaluation referred to both the veteran's psychiatric and back disabilities. While Social Security Administration (SSA) records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the possible existence of SSA records it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Here, the veteran has indicated that SSA has made some type of disability determination in his case, and the document that he indicated had been considered by SSA addressed both his psychiatric and back disabilities. Thus, the Board finds that the RO should obtain and associate with the claims file any additional SSA disability determination records, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2007) with respect to requesting records from Federal facilities. In addition, the RO should give the veteran another opportunity to present any additional information and/or evidence pertinent to the claims for service connection for a psychiatric disorder and a back disability. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims for service connection for an acquired psychiatric disorder and for a back disability. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should obtain from the SSA a copy of the decision awarding the veteran disability benefits, as well as copies of all medical records underlying such determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the matters of entitlement to service connection for an acquired psychiatric disorder and a back disability. 3. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the claims for service connection for an acquired psychiatric disorder, to include PTSD, and for a back disability. 5. If any benefits sought on appeal remain denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims 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 Supp. 2007). ______________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs