Citation Nr: 0814339 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-36 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for psychiatric disability other than post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from February 1988 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board notes that an August 1994 rating decision denied service connection for major depression, panic attacks, and a personality disorder which included schizoid features. An April 1996 rating decision denied service connection for a neurosis, then classified as a bipolar disorder. The current claim involves anxiety and depressive disorders of the type considered in the referenced rating decisions. Although the veteran has recently been diagnosed with a schizoaffective disorder, service connection for this disorder was previously considered in the context of his personality disorders. In short, the Board finds that the instant appeal does not involve any new claims not subject to the finality of the August 1994 and April 1996 rating actions. Accordingly, this claim involves an application to reopen, rather than an original claim for psychiatric disability. See generally, Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008). The Board notes that in December 2007, and following certification of the case to the Board, the veteran submitted additional medical evidence without waiving his right to have the RO initially review that evidence. Given that the Board, as discussed in further detail herein, is reopening and remanding the claim, the Agency of Original Jurisdiction will have the opportunity to review the referenced evidence. The veteran failed, without explanation, to report for a Board hearing scheduled for April 2008. His request for a Board hearing therefore is considered withdrawn. 38 C.F.R. § 20.702(d) (2007). The record shows that an August 2007 rating decision determined that new and material evidence had not been received to reopen a claim of service connection for post- traumatic stress disorder. To the Board's knowledge, the veteran has not submitted a notice of disagreement as to that issue. Consequently, the Board will limit its consideration to the matter listed on the title page of this action. The Board points out, however, that in a December 2007 statement, Dr. J. Beck concluded that the PTSD was related to the veteran's war exposure. The Board therefore refers this evidence to the RO for readjudication of his application to reopen the issue of service connection for PTSD. See 38 C.F.R. § 3.156(b) (2007). In addition, the veteran, in an April 2007 statement, raised the issues of service connection for staphylococcal infections and for boils. Those matters are also referred to the RO for appropriate action. The issue of service connection for psychiatric disability on a de novo basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for psychiatric disability was denied in an August 1994 rating decision; the veteran was notified of the decision and of his appellate rights with respect thereto, but did not appeal the decision. 2. A subsequent unappealed rating decision of April 1996 continued the denial of service connection for psychiatric disability. 3. The evidence received since the April 1996 rating decision is not duplicative or cumulative of evidence previously of record, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the veteran's claim for service connection for psychiatric disability other than PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's duties to notify and assist Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in his possession that pertains to the claim. In light of the Board's reopening of claim, any deficiency regarding new and material evidence notice is not prejudicial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). II. New and material evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303. Service incurrence of psychosis during wartime service may be presumed if manifested to a compensable degree within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2002). 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. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board points out that 38 C.F.R. § 3.156(a), pertaining to the definition of "new and material evidence" was amended effective August 29, 2001. Although the veteran filed a claim to reopen in January 2001, he failed until 2003 to respond to a May 2001 request by the RO that he submit evidence in support of his claim; that May 2001 request specifically informed him that if he failed to reply within a year of the letter, any benefit to which he may be entitled would not be payable for any period prior to the date the reply is received. See 38 C.F.R. § 3.158(a). In 2003, he filed the instant claim to reopen. Consequently, only the current version of 38 C.F.R. § 3.156(a) is for application in this case. Under current 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). An August 1994 rating decision denied entitlement to service connection for depression, panic attacks, and a personality disorder. The veteran was notified of the decision and of his appellate rights with respect thereto, but he did not appeal. An April 1996 rating decision denied service connection for neurosis. Consequently, service connection for psychiatric disability other than PTSD may be considered on the merits only if new and material evidence has been received since the time of the April 1996 adjudication. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2007). The evidence on file at the time of the April 1996 rating decision included the reports of October 1993 and July 1995 VA examinations, and VA treatment reports for October 1992 to June 1995. At his examinations, the veteran was diagnosed as having major depression, bipolar disorder, panic attacks, and a mixed personality disorder with schizoid features. The VA treatment records showed that he reported first experiencing psychiatric symptoms in service, which continued shortly after service. The records documented treatment for major depressive episodes, possible bipolar, cyclothymic and dysthymic disorders, anxiety disorder, and panic disorder. The evidence added to the record since the April 1996 rating decision includes service medical records for the veteran received in February 2005, as well as a December 2007 statement by Dr. J. Beck. The service medical records show that at his service discharge examination, the veteran reported feeling depressed about not being selected for a certain school, and anxious about leaving service. In his statement, Dr. J. Beck concludes that the veteran was suffering from serious psychiatric impairments including bipolar disorder and schizoaffective disorder as a result of war exposure. The Board finds the above evidence to be clearly new and material, given that the evidence previously considered neither included any service medical records documenting psychiatric complaints, nor any medical evidence linking his current psychiatric disability to service. The veteran's claim for service connection for psychiatric disability other than PTSD is therefore reopened. ORDER New and material evidence having been received, reopening of the claim for service connection for psychiatric disability other than PTSD is granted. REMAND As discussed in the previous section, service medical records document complaints of depression and anxiety at service discharge, and Dr. Beck's statement is an indication of a link between the veteran's current psychiatric disorder and an event in service. In light of this, the Board finds that a VA opinion addressing the etiology of any current psychiatric disorder other than PTSD would be helpful in the adjudication of the claim. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claim. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 2. If the RO is unsuccessful in obtaining any medical records identified by the veteran, it should inform the veteran and his representative of this and ask them to provide a copy of the outstanding medical records. 3. Then, the RO should arrange for the veteran to undergo a VA examination to determine the nature, extent and etiology of any currently present psychiatric disability. All indicated studies should be conducted. The examiner should be requested to provide an opinion, with respect to each currently present psychiatric disorder, as to whether it is at least as likely as not that such disorder is etiologically related to service. The veteran's claims files must be made available to the examiner for review. 4. The RO should then prepare a new rating decision and readjudicate the issue of service connection for psychiatric disability other than PTSD on a de novo basis. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs