Citation Nr: 1009213 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 08-14 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from December 1978 to January 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran was scheduled for a hearing before the Board at the Board's office in Washington, DC in January 2010. He failed to report for the scheduled hearing without explanation. He has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed to be withdrawn. FINDINGS OF FACT 1. In an unappealed May 2000 Board decision, the Veteran's claim of entitlement to service connection for an anxiety disorder with panic attacks was denied. 2. The evidence associated with the claims file subsequent to the May 2000 Board decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disability. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 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. New evidence is defined as 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The Veteran originally filed his claim of entitlement to service connection for an anxiety disorder with panic attacks in December 1996. In a June 1997 rating decision, the RO denied the Veteran's claim based on a finding that the Veteran's anxiety disorder with panic attacks pre-existed his active service and was not aggravated by active service. The Veteran appealed that decision to the Board and in a May 2000 Board decision, the Board denied the Veteran's claim of entitlement to service connection for an anxiety disorder with panic attacks based on the absence of medical evidence of a link between the Veteran's current anxiety disorder with panic attacks and his active service. The evidence of record at the time of the May 2000 Board decision included the following: the Veteran's service treatment records (STRs) showing that he was expeditiously medically boarded out of the Army for enuresis and that at the time of his separation he reported having a history of anxiousness and worrying; a May 1997 VA mental disorders examination report, in which the VA examiner diagnosed the Veteran with anxiety disorder with panic attacks; a May 1997 VA general medical examination report; substance abuse and mental health treatment records from Brockton Hospital from October 1994; and substance abuse and mental health treatment records from Cambridge and Sommerville Hospitals from September 1996. The evidence that has been received since the Board's May 2000 decision includes the following: mental health records from Plymouth Counseling services from January 2006 to December 2006; a November 2001 Social Security Administration (SSA) decision authorizing supplemental security income payments to the Veteran; Northeast Health Services medical treatment notes from January 2000 to September 2005; Comprehensive Geriatrics Services medical treatment notes from July 2000; sporadic VA Medical Center treatment notes from September 1998 to April 2008, to include sporadic mental health treatment notes; and a September 2007 letter from the Veteran's VA Medical Center treating psychiatrist, in which Dr. M.M. stated that the Veteran had experienced a lifelong problem with severe anxiety which began after the Veteran entered active service, had remained a big part of his life since active service, and prevented him from leading a normal life. The Board finds that the September 2007 letter from Dr. M.M., stating that the Veteran's anxiety disorder had its onset after the Veteran entered active service is new and material. In this regard the Board notes that the medical evidence directly addresses the reason the claim was originally denied. The medical evidence is not cumulative or redundant of the evidence previously of record. Moreover, the medical evidence is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim for entitlement to service connection for a psychiatric disability is in order. ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a psychiatric disability is granted. REMAND The Board is of the opinion that additional development is required before the Veteran's claim of entitlement to service connection for a psychiatric disability is decided. A review of the Veteran's STRs shows that on his January 1979 separation examination, the Veteran checked "yes" when asked if he experienced depression or excessive worry and checked "yes" when asked if he experienced nervous trouble of any sort. Additionally, the examiner noted on the separation examination report that the Veteran had always had trouble sleeping, was a chronic worrier about home and personal problems, and that his nervousness occurred when around new people or in new places. In May 1997 the Veteran was afforded a VA psychiatric examination. At that time the examiner diagnosed the Veteran with anxiety disorder with panic attacks and dependent personality disorder. The examiner noted that the Veteran had major impairment in work, family relations, and thinking as a result of his mental health disorders. Additionally, at that examination the Veteran reported a substantial and ongoing history of alcohol and substance abuse. Since his separation from active service, the Veteran has received mental health and substance abuse treatment at several facilities. Private treatment records from October 1994 and September 1996 show that the Veteran had been hospitalized several times for detoxification. As reported at his VA examination, the records tend to indicate that the Veteran has had a long history of alcohol and substance abuse problems. From June 2000 to September 2005 the Veteran received mental health treatment from Northeast Health Services. During that time the Veteran was treated for a variety of disorders; to include recurrent major depression, alcoholism, panic disorder, social phobia, general anxiety disorder, and posttraumatic stress disorder (PTSD); which began at age nine following a sexual assault and was compounded by physical abuse, death of one older brother by homicide, and suicide of another older brother. It was not noted whether any of these disorders were a result of the Veteran's active service. The Veteran also received mental health treatment at Plymouth Counseling from January 2006 to December 2006. During that time the Veteran was diagnosed with a variety of psychiatric disorders, to include PTSD, severe anxiety, bipolar disorder by history, and schizoaffective disorder by history. It was not noted whether any of these disorders were a result of the Veteran's active service. The Veteran has also received sporadic mental health treatment at the VA Medical Center. The Veteran's most recent VA Medical Center mental health treatment of record was in April 2008. In an April 2008 mental health treatment note, the Veteran's treating physician noted that the Veteran was still being treated for anxiety, panic attacks, and agoraphobic symptoms. Additionally, the treating physician noted that there were symptoms consistent with PTSD resulting from childhood sexual trauma. The treating physician also noted that there was a history of childhood onset schizophrenia. A Veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2009).. Only such conditions as are recorded in physical examination reports are to be considered as "noted." The Veteran's reported history of the pre- service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury pre-existed service. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In this regard, the Board notes that the evidence indicating that the Veteran has a long standing history of mental health disorders that pre-existed his active service appears to be based upon lay history provided by the Veteran. There has never been a determination made as to whether there is clear and unmistakable evidence that the Veteran had a psychiatric disorder which pre-existed his active service. Additionally, the same physician who authored the April 2008 VA Medical Center treatment note also wrote a letter in September 2007 in which he stated that the Veteran experienced severe anxiety which began after the Veteran entered active service and had continued to remain a big part of his life. Dr. M.M. also stated that the Veteran's condition prevented him from living a normal life. There is no documentation in this letter as to exactly what this opinion was based upon. Additionally, there is no indication that the physician had ever had the opportunity to examine the Veteran's claims file in preparation of his opinion. Therefore, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of all currently present psychiatric disorders, to include whether any currently present psychiatric disorders clearly and unmistakably pre-existed the Veteran's active service and were not aggravated by such service. Additionally, current treatment records should be obtained before a decision is rendered in this case. Accordingly, this case is remanded to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified, but not provided by the Veteran, to include VA Medical Center and mental health treatment records. If it is unable to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 2. Then, the Veteran should be scheduled for a VA examination by a psychiatrist or a psychologist to determine the nature and etiology of all acquired psychiatric disorders currently present or present at any time during the pendency of the claim. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon the examination results and review of the record, the examiner should provide the following opinions for each acquired psychiatric disorder the examiner determines has been present at any time during the pendency of the claim. Is there a 50 percent or better probability that the disorder was present in service and if so, did the disorder clearly and unmistakably exist prior to the veteran's entrance onto active duty? With respect to any such disorder which the examiner believes existed prior to the veteran's entrance onto active duty, did the disorder clearly and unmistakably undergo no chronic increase in severity during or as a result of service? With respect to any such disorder which the examiner believes was not present during military service, is there a 50 percent or better probability that the disorder is etiologically related to the veteran's military service? The rationale for all opinions expressed must be provided. 3. The RO or the AMC should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for psychiatric disability in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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. 2009). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs