Citation Nr: 1019294 Decision Date: 05/25/10 Archive Date: 06/09/10 DOCKET NO. 08-19 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for the claimed residuals of a pilonidal cyst status post excision, and if so, whether entitlement to service connection is warranted. 2. Entitlement to service connection for an acquired psychiatric disorder to include anxiety and/or depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to January 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from August 2007 and September 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the August 2007 decision, the RO denied entitlement to service connection for anxiety and depression, and determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a post-operative pilonidal cyst. The September 2007 rating decision confirmed and continued the previous denied of service connection for pilonidal cyst post-operative because additional evidence submitted after the August 2007 rating decision was issued was not new and material. In March 2010, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. The reopened claim of service connection for residuals of a status post operative pilonidal cyst 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. In January 1971 and March 1971 rating decisions, the RO denied service connection for pilonidal cyst, postoperative. A notice of disagreement was not received within the subsequent one-year period(s), and those decisions became final. 2. Evidence submitted since the RO's March 1971 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for residuals of a pilonidal cyst, postoperative, and therefore raises a reasonable possibility of substantiating the claim. 3. The weight of the competent and credible medical and lay evidence of record establishes that the Veteran's current psychiatric disorder, to include anxiety and/or depression if any, had its onset many years following discharge from service and is not otherwise related to any disease injury or other incident of service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's March 1971 rating decision which denied service connection for pilonidal cyst, thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 2. An acquired psychiatric disorder, to include depression and/or anxiety was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107(b), 7104 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). With regard to the service connection claim for depression and anxiety, the RO provided the appellant pre-adjudication notice by letter dated in February 2007. This notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. VA has obtained service treatment records and assisted the Veteran in obtaining evidence. Additionally, the Veteran was afforded the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Veteran was not afforded an opportunity to appear for a VA examination to determine the likely etiology of the current acquired psychiatric disorder. In disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Veteran was not afforded a VA psychiatric examination to determine the likely etiology of the current diagnosis of depression and/or anxiety, no such examination is necessary in this case because a psychiatric disability is first shown many years after service and there is no competent evidence indicating the condition may be related to service. In that regard, the Board finds, as will be discussed further below, that the Veteran's reports of continuity of symptoms since service based on an in-service event are not credible. VA has substantially complied with the notice and assistance requirements with respect to the service connection claim and the Veteran is not prejudiced by a decision on that claim at this time. Given the favorable nature of the Board's decision on the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for pilonidal cyst, postoperative, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance with respect to reopening previously denied claims. In other words, despite any defect in the notice provided to the Veteran regarding new and material evidence, the matter is subsequently reopened by the Board; thus, any defect in this regard results in harmless error. See Kent v. Nicholson, 20 Vet. App. 1 (2006). II. New and Material Evidence - Pilonidal Cyst In January 1971 and March 1971 decisions, the RO denied service connection for pilonidal cyst, post-operative. The basis of the denial was that there was no evidence of the cyst during the Veteran' s military service or at the time of discharge in January 1971. Records in December 1971 indicated that the Veteran noticed the cyst nine months earlier, which would have been around March 1971, after separation from service, however, there was no evidence linking the cyst to service. A notice of disagreement was not received within the subsequent one-year period. Currently, the appellant contends that he fell on his low back during service, and suffered an open sore in the area of his tail bone where the cyst ultimately developed. The Veteran also maintained that he was treated for his fall during service. Additional evidence has been added to the record, including additional medical records from December 1970 that were not part of the record at the time of the earlier decision, as well as the Veteran's hearing testimony from his video conference in March 2010. Currently, the appellant contends, in essence, that the disability for which he seeks service connection had its onset during service because he injured his tailbone in service, and was treated for what began as a bruise, then a redness, and then developed into a pimple, and eventually the cyst. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means 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) (2009). In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. In essence, at the time of the prior denial, the RO determined Since the prior final decision, evidence has been added to the claims file, including the Veteran's lay testimony at his video conference regarding the evolution from an in-service slip-and-fall on his tail bone to a bruise, then redness, then pimple, and ultimately, the development to cyst. Thus, the additional evidence is new and material and reopening the claim is warranted. III. Service Connection The Veteran seeks service connection for an acquired psychiatric disorder to include anxiety and depression. The Veteran maintains that his current depression and anxiety dates back to service when he got a girl pregnant, but was not allowed to marry her. The Veteran further alleges that he spoke to a medic in Spain regarding his depression and that he has never been able to locate the woman who he got pregnant or his illegitimate child. Current private treatment records show that the Veteran has been treated for symptoms of anxiety and depression since about 1991. There is absolutely no evidence in the claims file showing treatment before that time, including in the service treatment records. The service treatment records are completely negative for findings, complaints or a diagnosis of anxiety, depression, or any other acquired psychiatric disorder. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of certain enumerated presumptive diseases to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309. Psychosis, but not depression and/or anxiety, is a presumptive disease; thus the rules regarding presumptive service connection are not applicable to this case. The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran maintains that he has been depressed since service, and he is certainly competent to testify as to symptoms and feelings that are readily identifiable and which do not need a medical background to diagnose. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). However, he is not necessary capable of determining that his symptoms in service are manifestations of the same diagnosed disability that is shown in the more recent private treatment records, and in this case, there is no medical evidence to support this assertion. Moreover, while the Veteran is competent to report continuity of symptoms, his statements are outweighed by the negative evidence of record which includes a lack of any objective signs or symptoms in the record for over two decades including during the Veteran's entire period of service. The Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Furthermore, the Veteran's statements regarding his symptoms following discharge from service, while competent, are not supported by the evidence of record, and are therefore not credible. Private treatment records dated in June 1991 reflect that the Veteran's father died in 1976 and he was depressed for a few days. The physician noted that the Veteran's panic attacks did not predate Reglan. The diagnostic impression was panic disorder likely due to taking Reglan. The Veteran discussed his family background with the physician but there was no reference to military service. In October 1991, the Veteran reported slight anxiety symptoms and some preoccupation since his daughter visited. In May 1992, he reported that he had increasing anxiety during episodes with his daughter. In July 1992, he reported some situational stress. In May 1994, he was stressed out because a contractor tried to take advantage of him. The private medical records show ongoing treatment for psychiatric complaints beginning in 1991, many years after service, but not once was there any mention of military service. In light of the five years of private treatment records which show evaluation and treatment of psychiatric symptoms/conditions, with no mention of military service, the Board finds the Veteran's reports of continuity of symptomatology since service related to an incident of service are not credible. In light of the foregoing, the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder to include depression and/or anxiety; there is no doubt to be resolved; and service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for claimed residuals of a pilonidal cyst having been submitted, the claim is reopened. Service connection for an acquired psychiatric disorder, to include depression and/or anxiety is denied. REMAND Having reopened the claim of service connection for the claimed residuals of a postoperative pilonidal cyst, VA must obtain relevant records which could possibly substantiate the claim and conduct an appropriate medical inquiry. See Peters v. Brown, 6 Vet. App. 540, 542 (1994); 38 U.S.C.A. § 5107(a) (West 2002). In light of the Veteran's testimony regarding the predisposing factors that led up to the post-service cyst development, a VA examination is necessary to determine if the entire cyst process had its onset during service, or is otherwise related to the claimed inservice injury. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all available recent VA and/or private medical records concerning treatment received by the Veteran for his postoperative pilonidal cyst disability since discharge from service, not already associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of the pilonidal cyst disability. The claims folder must be made available to and reviewed by the examiner in conjunction with the requested study. The examiner in this regard should elicit from the Veteran and record a full clinical history referable to the claimed residuals of the postoperative pilonidal cyst disability. The examiner should opine as to whether (a) the Veteran's post-service cyst as likely as not had its onset during service, or whether the post-service cyst developed as a result of the claimed in-service injury described by the Veteran at his video conference hearing in March 2010. In so opining, the examiner should consider the service treatment records, pertinent VA and private medical evidence in the claims file, and the condition of the cyst in December 1971 compared with the date of discharge from service less than one year earlier. The examiner should also consider any VA records, as well as any additional pertinent medical evidence that is obtained and associated with the claims file subsequent to this remand. All findings must be reported in detail with a complete rationale provided for all opinions and all indicated testing must be accomplished. 3. Following completion of the development requested, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period of time allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs