Citation Nr: 0814751 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-35 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, variously classified. 2. Entitlement to service connection for an acquired psychiatric disorder, variously classified. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a knee disability. 5. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from February 1989 to March 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). In the past the veteran has been denied service connection for depression/sleeplessness (July 2000) post-traumatic stress disorder (PTSD) (January 2002), and PTSD, depression and sleeplessness (April 2004). The issue on appeal stems from a claim for service connection for panic attack disorder and depression, which was adjudicated by the RO as a claim for service connection for PTSD. Essentially, the veteran is and has been claiming service connection for an acquired psychiatric disorder which has been classified differently throughout the years. Accordingly, the issue on the cover page has been changed to more accurately reflect the veteran's contentions. In January 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the claims file. The issues of service connection for a low back disability, knee disability, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for PTSD, depression and sleeplessness was most recently denied by an April 2004 rating decision. The veteran was notified of this action and of his appeal rights at that time and did not appeal the decision. It was held that the evidence did not show that these disabilities were incurred in service. The April 2004 rating decision is final. 2. The evidence received since the April 2004 rating decision raises a reasonable possibility of substantiating the claim as the veteran has submitted new evidence showing his psychiatric condition while in service. 3. Competent medical evidence of record supports a finding that a current acquired psychiatric disorder, variously classified, more likely than not is the result of the veteran's active military service. CONCLUSIONS OF LAW 1. An April 2004 rating decision denying the veteran's claim for entitlement to service connection for PTSD, depression and sleeplessness is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302 (2007). 2. New and material evidence to reopen the veteran's claim for entitlement to service connection for an acquired psychiatric disorder, variously classified, has been received since the April 2004 rating decision. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. With resolution of reasonable doubt in the veteran's favor, an acquired psychiatric disorder was incurred in service. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is reopening and granting the veteran's claim for service connection for an acquired psychiatric disorder, variously classified. This is considered a full grant of the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist relevant to these issues, such error was harmless and will not be further discussed. The other issues on appeal are being remanded in part to ensure compliance with the VCAA; therefore, further discussion regarding compliance with the VCAA is unnecessary at this time. II. New and Material Evidence The Board, in the first instance, must rule on the matter of reopening a claim. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened because reopening is a jurisdictional determination. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, 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. 38 C.F.R. § 3.156(a). When determining whether the appellant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the Court indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The veteran asserts that he has an acquired psychiatric disorder as a result of his active military service. He contends that this disorder is the result of his experiences in Southwest Asia during the Persian Gulf War. Service connection for PTSD, depression and sleeplessness was most recently denied by an April 2004 rating decision. It was held that the evidence did not show that these disabilities were incurred in service. The veteran was notified of this action and of his appeal rights at that time. He did not file a notice of disagreement with this decision; thus it has become final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302. Since the April 2004 decision, the veteran has submitted new evidence, including a November 27, 1996 service treatment record. This record, a consultation request and report, shows a provisional diagnosis of rule out depression or cognitive disorder and details the veteran's psychiatric symptomatology while he was still in service. Importantly, the veteran's separation examination, which is dated prior to this consultation and was of record at the time of the last final denial, did not indicate if the veteran had an abnormal or normal psychiatric evaluation at that time. This newly submitted consultation report appears to be the veteran's pre-separation psychiatric examination. This evidence relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for an acquired psychiatric disorder, variously classified. See 38 C.F.R. § 3.156(a). One of the bases for the denial of service connection for PTSD, depression and sleeplessness was that the veteran had not submitted evidence that the veteran's psychiatric disorder was incurred in service. While other service treatment records note similar symptoms, the Board is of the opinion that this evidence is not cumulative as it provides more specific information about the veteran's psychiatric condition while in service, and importantly, just prior to his discharge. Therefore, this evidence establishes a new fact and cures the defect of the specified basis for the denial of service connection, and thus constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened. III. Service Connection The veteran asserts that he has an acquired psychiatric disorder as a result of his active military service. He contends this psychiatric disorder is the result of his experiences while serving on active duty in the United States Army in Southwest Asia during the Persian Gulf War. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a careful review of the evidence, the Board finds that with reasonable doubt resolved in favor of the veteran service connection is warranted for an acquired psychiatric disorder, variously classified. The veteran's November 1996 separation examination report shows that the veteran had recurrent depression, fatigue, and sleep disturbance while in service. On a report of medical history completed by the veteran in connection with his separation examination, he reported that he had frequent trouble sleeping, depression or excessive worry, and nervous trouble. A subsequent psychiatric consultation request and report shows that the veteran complained of depressive symptoms with memory and concentration difficulty, headaches, fatigue, and other symptoms. The provisional diagnosis given was rule out depression or cognitive disorder. At the veteran's personal hearing he testified about some of his experiences serving in Southwest Asia during the Persian Gulf War and the impact he felt these experiences had on him. He stated that he first sought treatment for psychiatric symptoms in 1991 and reported visiting the on base mental health clinic in 1996. He testified that while he was on active duty he was told by a medical professional that he had PTSD. Post-service treatment records show reports of anxiety, depression, social phobias and panic attacks. The veteran has been variously diagnosed with major depressive disorder and social phobia with panic attacks (July 2000 VA behavioral health intake report); anxiety disorder vs. PTSD (December 2001 VA clinic note); anxiety disorder not otherwise specified, depression not otherwise specified, and rule out PTSD (April 2002 VA clinic note); PTSD, continuous - with insomnia, occasional passive suicidal ideation (June 2002 VA clinic note); PTSD, chronic (August 2002 VA progress note); and PTSD, chronic, moderate to severe with social phobia (February 2004 VA psychiatric examination). According to the August 2002 VA progress note the veteran has experienced PTSD symptoms since he served in the Persian Gulf. The Board notes that post service the veteran has also been involved in addiction treatment programs. The competent medical evidence of record shows that the veteran had psychiatric complaints while in service, including sleep disturbance, depression, nervous trouble, memory and concentration difficulty, headaches and fatigue. After service, the veteran continued to have psychiatric complaints and has been diagnosed with an acquired psychiatric disorder, variously classified. The most recent medical evidence of record shows that the veteran suffers from chronic PTSD. With reasonable doubt resolved in favor of the veteran, the Board finds that the veteran has a current acquired psychiatric disorder that began in service and has continued to the present. Given the above, service connection is warranted. ORDER New and material evidence having been received, the petition to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, variously classified is allowed. Entitlement to service connection for an acquired psychiatric disorder, variously classified is granted. REMAND The veteran asserts that he has a low back disability, a knee disability, and sleep apnea as a result of his active military service. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran has not been afforded VA examinations in relation to any of the above claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran's service treatment records show complaints of recurrent back pain and diagnoses of back pain. The veteran's November 1996 separation examination report shows history of lumbar strain as a defect. A March 2005 MRI (magnetic resonance imaging) of the veteran's lumbar spine reportedly shows multilevel degenerative disc disease and facet osteoarthritis. The veteran asserts that he has had low back pain since service. The veteran's service treatment records also show complaints of sleep disturbance and fatigue. The veteran testified that while in the service he was told by other soldiers in the barracks that he would stop breathing while he was sleeping. In August 2005, after a sleep study, the veteran was diagnosed with severe obstructive sleep apnea syndrome. As the veteran has submitted evidence of current low back degenerative disc disease and osteoarthritis and obstructive sleep apnea that may be related to his active service, and there is no opinion as to the etiology of these disabilities of record, the Board is of the opinion that there is insufficient competent medical evidence of record to make a decision on the claims and the veteran should be afforded the opportunity to report for VA examinations to determine the nature and etiology of any current low back disability and obstructive sleep apnea. Turning to another matter, additional development in the form of records requests is warranted. In February 2003, the veteran submitted an authorization form for VA to obtain medical records from the Jerry L. Pettis VA Hospital for treatment for, among other things, knee pain, joint pain, back pain, and shortness of breath starting in March 1999. While records from this facility were obtained, records were only requested beginning in July 2000. Relevant VA records from March 1999 through June 2000 should be obtained. A January 2002 rating decision indicates that the veteran's service treatment records are incomplete. At the veteran's personal hearing he testified that he had a sleep study performed while he was in service. He stated that he was never told the results of the study. This study is not in the veteran's claims file nor is the veteran's service entrance examination. It is unclear if there are any other missing records. Printouts of VA emails show that VA was informed in June 2003 that there were no service treatment records at the RMC (Records Management Center). In a 2004 statement the veteran states that he was on "IAR" (the Board assumes this stands for inactive reserve duty) until 2003 and that may be why there is a problem locating his records. The Board is aware that the veteran's original service treatment records are in his claims file; nonetheless, some of the missing records may still be located elsewhere. The Board is of the opinion that another attempt should be made to obtain a complete set of the veteran's service treatment records. The Board notes that the provisions of 38 C.F.R. § 3.159(c) and (e) should be followed regarding the above records requests. This includes VA making as many requests as are necessary to obtain relevant records from a Federal department or agency, and ending efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain the records would be futile. See 38 C.F.R. § 3.159(c)(2). If the AMC/RO is unable to obtain any of the above records, or after continued efforts to obtain any of the above records it is concluded that it is reasonably certain that they do not exist or further efforts to obtain them would be futile, the veteran should be notified accordingly. See 38 C.F.R. § 3.159(e). Finally, the veteran should be provided proper notice regarding degrees of disability and effective dates as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided proper notice regarding degrees of disability and effective dates as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC/RO should obtain relevant outstanding treatment records from the Jerry L. Pettis VA Hospital from March 1999 through June 2000. All records/responses received should be associated with the claims file. If these records are not found that should be so certified and the veteran notified in accordance with applicable laws concerning Federal records. 3. The AMC/RO should make another attempt to obtain a complete copy of the veteran's service treatment records using the standard procedures. All records/responses received should be associated with the claims file. If these records are not found that should be so certified and the veteran notified in accordance with applicable laws concerning Federal records. 4. The veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of any current low back disability, to include degenerative disc disease and facet osteoarthritis. The claims folder should be made available to the examiner for review prior to the examination. The examiner should provide an opinion as to whether the veteran currently has any low back disability, to include degenerative disc disease and facet osteoarthritis, that is as likely as not (e.g., a 50 percent or greater probability) attributable to the veteran's service. Any opinion should be accompanied by a written rationale with evidence in the claims file and/or sound medical principles. 5. The veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of obstructive sleep apnea. The claims folder should be made available to the examiner for review prior to the examination. The examiner should provide an opinion as to whether the veteran's current obstructive sleep apnea is as likely as not (e.g., a 50 percent or greater probability) attributable to the veteran's service. Any opinion should be accompanied by a written rationale with evidence in the claims file and/or sound medical principles. 6. The veteran's entire file should then be reviewed and his claim readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs