Citation Nr: 0812657 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 02-22 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder characterized as depression. 2. Entitlement to service connection for a psychiatric disorder characterized as depression. REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from April 1969 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 decision rendered by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA), which determined that new and material evidence had not been submitted sufficient to reopen the veteran's previously denied claim for service connection for depression. In a May 2006 decision, the Board affirmed that new and material evidence had not been submitted sufficient to reopen the veteran's previously denied claim for service connection for depression. The veteran appealed this decision to the Court. A November 2007 Order of the Court granted a joint motion for remand and vacated the Board's decision for compliance with the instructions in the joint motion. Copies of the Court's order and the joint motion for remand have been included in the veteran's claims file. The issue of service connection for a psychiatric disorder characterized as depression is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an August 1981 decision, the RO denied service connection for depression; the veteran did not appeal. 2. Evidence received since the August 1981 RO decision bears directly on the matter at hand, and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW Evidence received since the August 1981 RO decision is new and material; and a claim of service connection for depression may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (effective prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, and prior to the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim; VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In this case, the veteran's claim was received on August 22, 2001. In correspondence dated in November 2004, the veteran received adequate notice of the provisions of the Veterans Claims Assistance Act (VCAA) as they pertain to the issue of service connection and substantially compliant notice as it related to reopening a claim based on new and material evidence. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Board is well aware of the VA's heightened duty to notify and assist in cases involving claims to reopen previously denied matters including informing claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. See Kent v. Nicholson, 20 Vet. App. 1 (2006). To the extent that the November 2004 VCAA notice did not fully comply with the requirements set forth in Kent; because of the favorable disposition regarding the submission of new and material evidence in this case, any failure on the part of VA to comply with the duty to assist and the duty to notify provisions under applicable law and regulations is harmless error. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim, including the degree of disability and the effective date of an award. As a remand of the case is necessary for further development, the RO is provided the opportunity to afford the veteran proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and there is no prejudice to the veteran. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Analysis The veteran contends that his depression is related to military service. In an August 1981 rating decision, service connection was denied because the evidence of record did not show treatment of depression or any nervous disorder during military service. The RO notified the veteran of his appellate rights by way of an August 1981 letter. The veteran did not file a Notice of Disagreement (NOD) regarding the RO's decision. Thus, the August 1981 RO decision became final. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, "[i]f 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." See 38 U.S.C.A. § 7105(c) and Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "New and material evidence" means evidence not previously submitted to agency decision makers which bears "directly and substantially" upon the specific matter under consideration. Such evidence must be neither cumulative nor redundant, and, by itself or in connection with evidence previously assembled, such evidence must be "so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a). [An amended version of 38 C.F.R. § 3.156(a) is effective only for petitions to reopen filed on or after August 29, 2001, and does not apply here, as the instant petition to reopen was filed prior to that date.] If it determined that new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring the VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of record at the time of the August 1981 denial included the veteran's service medical records. These records include an October 1968 pre-induction examination, during which the veteran indicated he had a history of depression or excessive worry and nervous trouble. Upon physical examination, he was noted to be a "chronic worrier." There are no further complaints or treatment for depression or nervousness during service, and the veteran's psychiatric evaluation was normal at the October 1970 separation examination. The evidence before the RO at the time of the initial denial also included records of hospitalization for depression in November and December 1973, and in January, February, and August 1974. These records reveal that the veteran's depression at that time was attributed to recent marital problems. A July 1981 letter from Dr. C. indicated that the veteran first came under his care for a depressive illness in 1975 and the veteran reported a past history of nervousness before and during military service. Based on the foregoing evidence, the RO denied service connection in an August 1981 rating decision, on the basis that there was no evidence of an acquired nervous condition manifested during service, and because the veteran's post- service depression was shown to be related to marital difficulties. Evidence submitted since August 1981 includes an October 1987 letter of correspondence from Dr. F., who noted that he has treated the veteran since 1975 for severe chronic depressive illness. Additional evidence also includes medical records from Dr. M., dated between March 1994 and October 2001 and showing treatment for depression. There is also a transcript from a Travel Board hearing held in September 2005. At that hearing, the veteran testified that he was nervous during his childhood, but he denied any childhood depression. He stated that he developed headaches, depression, and sleeping problems during military service and these symptoms have continued to the present time. Further evidence associated with the claims file since the August 1981 RO decision, includes various lay statements from the veteran's ex-wife, brother, and a friend who served with the veteran on active duty. The veteran also submitted a letter that he purportedly had written to his mother in January 1970. In that letter, he stated that he was homesick and depressed. The veteran's ex-wife wrote that the veteran sent "depressing" letters to her while he was in the military. She indicated that the veteran expressed to her how depressed and homesick he was at the time. In addition, the ex-wife also noted that the veteran was "not the same" when he returned home and that he drank a lot. The veteran's brother wrote that he believed a nervous condition ran in his family; however, he also attributed the veteran's current depression to military service. In addition, he indicated that the veteran sent him letters during service stating that he was getting beat up quite often and that he wanted to "go AWOL." The veteran's brother further stated that after the veteran returned from "Vietnam," he was "a total mess." He stated that the veteran was nervous, had flashbacks, got into trouble, and began to accuse his wife of infidelity. In addition, the veteran required psychiatric treatment shortly after separating from service and continues to receive treatment and medication to this day. Finally, the veteran's friend wrote that after he and the veteran had been in the Marines for some time, he noticed behavior such as nervousness and constant worrying on the part of the veteran, which led to bouts of depression. The veteran would also complain of headaches and being unable to sleep. The friend noted these symptoms would be present for a few weeks, disappear for a while, and then resurface. Based upon careful review of the record, the Board finds that the veteran has proffered new and material evidence, sufficient to reopen his previously denied claim of service connection for depression. The Board finds that the medical records from Dr. M., the September 2005 personal testimony, and the lay statements from the veteran's family and friend and the January 1970 letter to his mother all constitute new evidence, as it was not previously considered by the RO in 1981. The Board also initially notes that although the veteran's brother suggests that the veteran's current psychiatric problems were caused by service, as a layperson, he is not competent to express an opinion as to medical causation of post-service psychiatric problems, as he has not shown that he has specialized medical knowledge or training to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, his assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108; Moray v. Brown, 5 Vet. App. 211 (1993); Hickson v. West, 11 Vet. App. 374 (1998). However, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters, including when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In this instance, and presuming the credibility of the remaining lay statements for the limited purpose of reopening the claim, the Board notes that they constitute material evidence in that they bear directly and substantially on the matter under consideration (i.e. whether the veteran's depression manifested during service or shortly thereafter). These statements describe personal observations and knowledge of the veteran's depressed attitude and behavior both during and after service. To the extent that the lay statements attest to personal observation of symptomatology, as opposed to expressing medical opinions on the causation of the symptomatology; they do not fall within the realm of opinions requiring medical expertise and may be sufficient to reopen a previously denied claim. Therefore, as the evidence bears directly on the bases for the previous denial of the claim (i.e., the matter at hand), and is also so significant that it must be considered in order to fairly decide the merits of the claim, it is material. As new and material evidence has been received, the claim of entitlement to service connection for depression may be reopened. ORDER New and material evidence having been received; the claim of entitlement to service connection for depression is reopened. REMAND The veteran claims service connection for a psychiatric disorder characterized as depression. A review of the claims file suggests the need for further development prior to the Board's adjudication of the matter on appeal. On the veteran's August 2001 formal application for VA compensation, he indicated that he was in receipt of Social Security disability benefits. Currently, the records associated with the veteran's SSA claim are not included in the claims file. The United States Court of Appeals for Veterans Claims held in Murincsak v. Derwinski, 2 Vet.App. 362 (1992), that VA's duty to assist includes requesting both the SSA decision granting or denying benefits and any supporting medical records. In addition, on his March 2002 Notice of Disagreement (NOD) the veteran identified a Dr. Taub, who treated him for depression within a few years of discharge. During his September 2005 Travel Board hearing, the veteran testified that he had been treated for depression at the VA Medical Center (VAMC) in Poplar Bluff, Missouri. The record does not reflect that attempts were made to obtain treatment records from the Poplar Bluff VAMC or Dr. Taub. Accordingly, the case is REMANDED for the following action: 1. The RO should review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with. The notice should include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC/RO should contact the veteran and obtain information regarding his post- service treatment for depression. Of particular interest are VA outpatient treatment records from the Poplar Bluff VAMC, dated from 2002 to the present and private treatment records from Dr. Taub. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 4. When the above development has been completed, as well as any other deemed warranted, the RO should readjudicate the issue on appeal based on a de novo review of all pertinent evidence. If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case and afford the appellant and his representative the requisite opportunity to respond. 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 Supp. 2007). ______________________________________________ N. R. Robin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs