Citation Nr: 0814401 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-18 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a heart disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the veteran's claim of service connection for a heart disability and reopened and denied the veteran's claim of service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The claim for service connection for a heart disability was previously denied in a September 1972 RO decision. The veteran did not appeal that decision. 2. Evidence received since the last final decision in September 1972 relating to service connection for a heart disability is cumulative or redundant and does not raise a reasonable possibility of substantiating the claim. 3. The claim for service connection for an acquired psychiatric disorder was previously denied in an October 1978 Board decision. The veteran did not appeal that decision. 4. Evidence received since the last final decision in October 1978 relating to service connection for an acquired psychiatric disorder is new and raises a reasonable possibility of substantiating the claim. 5. The veteran's diagnosed psychiatric disorders (depressive neurosis, generalized anxiety disorder, schizophrenia, agoraphobia, post-traumatic stress disorder) first manifested many years after service and are not shown to be related to his service or to any incident therein. CONCLUSIONS OF LAW 1. The September 1972 RO decision that denied service connection for a heart disability is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2007). 2. New and material evidence has not been submitted to reopen a claim for service connection for a heart disability. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The October 1978 Board decision that denied service connection for an acquired psychiatric disorder is final. New and material evidence has been submitted to reopen the claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103 (2007). 4. The veteran's current psychiatric disorders were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence In a May 1972 rating decision, the RO denied the veteran's claim for service connection for an acquired psychiatric disorder. In a September 1972 rating decision, the RO denied the veteran's claim for service connection for a heart disability. The Board declined to reopen the claim for service connection for an acquired psychiatric disorder in October 1978. Most recently, in March 2006, the RO declined to reopen the claim for service connection for a heart disability but reopened the claim for service connection for an acquired psychiatric disorder and then denied it on the merits. While the RO already determined whether new and material evidence had been submitted to reopen the veteran's claims for service connection for a heart disability and an acquired psychiatric disorder, the Board must still consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In a decision dated in September 1972, the RO denied the veteran's claim for service connection for a heart disability. In a decision dated in October 1978, the Board denied the veteran's claim for service connection for an acquired psychiatric disorder. The veteran did not appeal these decisions. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2007). Thus, the September 1972 RO decision and the October 1978 Board decision became final because the appellant did not file timely appeals. The claims for entitlement to service connection for a heart disability and an acquired psychiatric disorder may be reopened if new and material evidence is submitted for the claims. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran filed this application to reopen his claims for service connection for a heart disability and an acquired psychiatric disorder in September 2005. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. 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 claims. 38 C.F.R. § 3.156(a) (2007). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Heart Disability The evidence before VA at the time of the prior final denial consisted of the veteran's service medical records, the veteran's post-service VA and private medical records, and the veteran's statements. The RO found that there was no evidence of a current disability, and the claim was denied. The veteran applied to reopen his claim for service connection for a heart disability in September 2005. The Board finds that the evidence received since the last final decision is cumulative of other evidence of record and does not raise a reasonable possibility of substantiating the veteran's claims. In support of his application to reopen his claim for service connection, the veteran submitted post-service VA and private medical records dated from February 1988 to April 2006. These records show that the veteran received intermittent treatment for dyslipidemia, left leg pain, colon polyps, hypertriglyceridemia, generalized anxiety disorder, schizophrenia, agoraphobia, PTSD, and rule out major depressive disorder with psychosis. There is no evidence of any diagnosis of a heart disability. Other newly submitted evidence includes a February 2006 VA examination. The VA examiner diagnosed the veteran with asymptomatic colonic polyposis by record, left hip arthralgia without evidence of pathology, hypertriglyceridemia, and generalized anxiety disorder. There was no diagnosis of a heart disability. Newly submitted evidence also includes January 1988 lay statements from the veteran's former fellow soldiers. These statements show, in pertinent part, that the veteran suffered from symptoms of depression, anxiety, and sleep difficulty during service. The lay statements do not reveal that the veteran suffered from any current symptoms of a heart disability. The Board finds that no new and material evidence has been submitted with regard to the claim for service connection for a heart disability. Although the additionally submitted medical records, VA examination, and lay statements are new, in the sense that they were not previously considered by agency decisionmakers, they are not material. The records and examination do not reflect current diagnoses of or treatment for a heart disability. The lay statements also do not show that the veteran suffered from symptoms of a heart disability. Accordingly, the evidence does not establish a fact necessary to substantiate the claim, and the claim for service connection for a heart disability cannot be reopened on the basis of this evidence. 38 C.F.R. § 3.156(a). Although the veteran has submitted new evidence that was not before the RO in September 1972, this new evidence is not material to the claim and does not warrant reopening of the previously denied claim. In light of the evidence and based on this analysis, it is the determination of the Board that new and material evidence has not been submitted with regard to the claim for service connection for a heart disability since the September 1972 rating decision because no competent evidence has been submitted showing any current disability. Thus, the claim for service connection for a heart disability is not reopened and the benefits sought on appeal remain denied. 2. Acquired Psychiatric Disorder The evidence before VA at the time of the prior final denial consisted of the veteran's service medical records, the veteran's post-service VA and private medical records, and the veteran's statements. The RO found that there was no evidence that the disability was incurred during active service, and the claim was denied. The veteran applied to reopen his claim for service connection for an acquired psychiatric disorder in September 2005. The Board finds that the evidence received since the last final decision is new and raises a reasonable possibility of substantiating the veteran's claim. In support of his application to reopen his claim for service connection, the veteran submitted a September 2005 letter from a private physician. The physician stated that the veteran had been in excellent health when inducted into the military but began treatment for psychiatric problems in 1970. She reported that he had been diagnosed with schizophrenia, agoraphobia, and anxiety disorder and opined that the veteran's psychiatric conditions most probably than not started during military service. The Board finds that new and material evidence has been submitted with regard to the claim for service connection for an acquired psychiatric disorder. The claim was previously denied because there was no evidence that the disability was incurred in or aggravated during active service. The veteran has submitted evidence showing that his psychiatric disorder was incurred during active service. Accordingly, with the new evidence presumed credible for the purpose of determining whether the claim should be reopened, the Board finds that new and material evidence has been submitted. Therefore the claim for service connection for an acquired psychiatric disorder is reopened. 38 C.F.R. § 3.156(a). This does not mean that service connection is granted. Rather, the merits of the claim for service connection will have to be reviewed on a de novo basis, as addressed below. As the Board has determined that new and material evidence has been submitted, it is necessary to consider whether the veteran would be prejudiced by the Board proceeding to a decision on the merits. In this case, the statement of the case provided the veteran with the laws and regulations pertaining to consideration of the claim on the merits. Additionally, the Board notes that the discussion in the statement of the case essentially considered the veteran's claim on the merits. Also, the veteran has provided arguments addressing his claim on the merits. The Board therefore finds that, given that the veteran had adequate notice of the applicable regulations, he would not be prejudiced by the Board's review of the merits of the claim at this time. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, including psychoses, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.30(d). Acquired Psychiatric Disorder The veteran's service medical records are negative for any complaints of or treatment for a psychiatric disorder. On separation examination in April 1970, the veteran made no psychiatric complaints, and his psychiatric system was found to be within normal limits. Since there were no recorded complaints of symptoms of an acquired psychiatric disorder during approximately two years of service and the veteran's psychiatric system was found to have no abnormalities on examination at separation, the Board finds that the weight of the evidence demonstrates that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection for an acquired psychiatric disorder. 38 C.F.R. § 3.303(b). The first post-service evidence of an acquired psychiatric disorder is a February 1971 VA medical report where the veteran was diagnosed with an active psychosis. In a December 1971 VA examination, the veteran was diagnosed with mild to moderate depressive neurosis. A March 1972 expert opinion found that the February 1971 diagnosis of an active psychosis was ambivalent in its context and was not made by a psychiatrist. The opinion found that there was no evidence of psychotic ideas or a thought disorder, and that the veteran's symptoms were that of a neurosis. Upon review of the claims file, the expert concluded that based on the existing symptoms and the fact that the December 1971 diagnosis had taken into consideration the February 1971 medical report, the veteran's correct diagnosis was that of depressive neurosis. The veteran submitted January 1988 lay statements from friends who served with him in the military. The friends stated that they had served with the veteran during active service and had observed him being depressed on many occasions. They reported that he sometimes isolated himself from others and did not sleep well at night. They stated that he did not see a doctor about his problems because he had a fear of going to the doctors. In a February 1988 social worker report, the social worker reported that the veteran's emotional and nervous instability started when he observed a military tank crush and disfigure three of his companions during active duty. The social worker stated that the veteran's companions observed him acting depressed, isolating himself, and not sleeping well at night. He reported that the veteran had been receiving treatment for his psychiatric condition since February 1971. He asserted that the veteran's psychiatric condition had affected his wife emotionally to the point where she also required medical treatment. He further reported that the veteran missed a lot of work due to his nervous condition and had problems with his co-workers. He opined that the veteran needed continued medical treatment for his condition. VA medical records dated from September 2004 to May 2005 show, in pertinent part, that the veteran received intermittent treatment for generalized anxiety disorder. A September 2005 letter from a private physician stated that the veteran had been in excellent health when inducted into the military but began treatment for psychiatric problems in 1970. She reported that he had been diagnosed with and treated for schizophrenia, agoraphobia, and anxiety disorder and opined that the veteran's psychiatric conditions most probably than not started during military service. Social Security Administration disability records dated from January 2006 to April 2006 show that the veteran had diagnoses of undifferentiated chronic schizophrenic reaction with severe paranoid traits, chronic generalized anxiety disorder, chronic post-traumatic stress disorder, and rule out major depression disorder with psychosis. On VA examination in February 2006, the veteran complained of suffering from irritability, insomnia, inability to concentrate, anxiety, restlessness, and tension. He reported being excessively anxious and worried about many things. He did not report any psychotic symptoms or cognitive symptoms. Examination revealed appropriate dress and adequate hygiene. The veteran was spontaneous, cooperative, and established eye contact with the examiner. He was alert and in contact with reality, and there was no evidence of psychomotor retardation or agitation. His thought process was coherent and logical, and there was no looseness of association or disorganized speech. There was no evidence of delusions, hallucinations, phobias, obsessions, panic attacks, or suicidal ideas. His mood was anxious, and his affect was broad and appropriate. He was oriented in three spheres and had intact memory, normal abstraction capacity, good judgment, and fair insight. The examiner reviewed the veteran's electronic medical records and diagnosed him with generalized anxiety disorder. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board is inclined to place minimal probative value on the September 2005 medical opinion from the private physician. While the physician related the veteran's psychiatric conditions to his period of active service, the opinion appears to have been based primarily upon a history provided by the veteran, rather than upon a review of the evidence of record. The filtering of the veteran's account of his military service through his physician does not transform the veteran's account into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). Additionally, the Board finds that the opinion is not supported by adequate rationale, as there is no explanation as to why the veteran's current psychiatric condition was related to his period of active service. If the examiner does not provide a rationale for the opinion, this weighs against the probative value of the opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the evidence is against a finding of a nexus between an acquired psychiatric disorder and military service. In addition, there was no competent diagnosis of a psychosis made within one year of separation, so presumptive service connection for an acquired psychiatric disorder is not warranted. The veteran and his friends contend that his current acquired psychiatric disorder is related to his active service. However, as laypersons, they are not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran and his friends are competent to give evidence about what they experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The preponderance of the medical evidence weighs against a finding that the veteran's acquired psychiatric disorder developed in service. Therefore, the Board concludes that the current psychiatric disorder was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection, the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in November 2005 and March 2006; a rating decision in March 2006; a statement of the case in May 2006; and a supplemental statement of the case in June 2006. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the February 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to these claims. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER The application to reopen the claim for service connection for a heart disability is denied. New and material evidence having been submitted, the claim for service connection for an acquired psychiatric disorder is reopened. To that extent only the claim is allowed. Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs