Citation Nr: 1030968 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 06-26 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to service connection for cervical spine disability. 5. Whether new and material evidence has been received to reopen a claim for service connection for keloid scarring. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active service from July 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 and January 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was also developed for claims of service connection for back and bilateral knee disability. However, service connection was granted for these disabilities in a January 2007 rating action, which is a substantial grant of the benefit sought. Though the Veteran filed a notice of disagreement (NOD) in February 2007, later that month, he clarified the issues, he wished to appeal, which are listed on the title page. He also indicated that he was satisfied with his appeal regarding the grant of service connection for bilateral knee and lumbar spine disabilities. Statements by the representative in a July 2010 Written Brief Presentation could be construed as raising new claims for an increased rating for back and knee disability and a total rating based on individual unemployability due to service connected disabilities (TDIU). However, these matters have not been adjudicated by the Agency of Original Jurisdiction (AOJ), and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has submitted new and material evidence to reopen a claim for service connection for keloid scars in the back of the scapular region. In December 1989, the RO, in pertinent part, denied service connection for keloid scarring. Because the Veteran did not appeal the RO's December 1989 decision denying his service connection claim, that decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. So there has to be new and material evidence to reopen this claim to warrant further consideration of it on its underlying merits. 38 C.F.R. § 5108; 38 C.F.R. § 3.156. Irrespective of what the RO determined, the Board must make the determination of whether there is new and material evidence to reopen this claim, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate the claim on its underlying merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims) and VAOPGCPREC 05-92 (March 4, 1992). If the Board determines there is no new and material evidence, that is where the analysis must end, and what the RO determined in this regard is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.159(b), VA is required to notify the Appellant of the evidence necessary to establish his claim. And as the U. S. Court of Appeals for Veterans Claims (Court/CAVC) clarified in Kent v. Nicholson, 20 Vet. App. 1 (2006), to this end, for petitions to reopen previously denied, unappealed claims, VA must notify the Veteran of the elements of his claim and of the definition of "new and material evidence." Kent also requires that VA give the Veteran notice of precisely what evidence is necessary to reopen the claim, depending upon the basis of the previous denial. The RO sent the Veteran a letter in July 2005 indicating he needed to submit new and material evidence to reopen his claim, also defining new and material evidence, and indicating his claim previously had been denied in the 1989 decision because his disability existed prior to military service. Therefore, according to the letter, the evidence he submits must relate to this fact. VA's Office of General Counsel has issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial. VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006). This letter did not mention that he needed to show that his preexisting disability was aggravated by military service. So additional VCAA notice is needed to comply with Kent. The Veteran also claims that he has bilateral shoulder and cervical spine disabilities that had their onset during military service. The service treatment records (STRs) show that he received medical care for shoulder complaints in 1978. In August 1979, he was also seen after a diving board incident in which he complained of back pain. The Veteran claims that this was the onset of his current cervical spine disability. Post service VA outpatient records dated in April 2004 show that he complained of shoulder pain. The X-ray study revealed a cervical spine disability. Moreover, a September 2007 VA X-ray report showed mild degenerative changes of the shoulders. In light of inservice treatment for shoulder complaints, the reported diving incident, and current diagnoses regarding cervical spine and bilateral shoulder disabilities, VA examination and opinion is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Veteran also claims that he has a psychiatric disability as a result of his military service to include PTSD and depression. The record contains several psychiatric diagnoses including depression, schizoaffective disorder, and polysubstance abuse. He claims that his psychiatric disability is secondary to his service connected disabilities. VA examination and opinion is also needed in regard to this claim. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) that (1) notifies the veteran of the evidence and information necessary to reopen the claim; (2) notifies the veteran of the reasons for the December 1989 denial (it was determined that the keloid scarring pre- existed service and was not aggravated therein); and (3) notifies the veteran of what specific evidence would be required to substantiate the element or elements needed to grant the veteran's service connection claim (i.e., evidence establishing that keloid scarring had its onset or increased in severity during active duty). This notice is outlined by the Court in Kent, supra. 2. Schedule the Veteran for appropriate VA examination(s) to determine the nature and etiology of his cervical spine and bilateral shoulder disabilities. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical and other history. For any shoulder or cervical spine disability identified, the examiner should indicate whether it is as likely as not (fifty percent probability or greater) related to the Veteran's period of active duty, including the history of the diving accident in service. The examiner must discuss the rationale of any opinion rendered, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 3. Schedule the Veteran for a VA mental health examination to determine the nature and etiology of any psychiatric disability exhibited. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical and other history. For any psychiatric disability identified, the examiner should indicate whether it is as likely as not (fifty percent probability or greater) related to the Veteran's period of active duty and/ or his service-connected disability. If the psychiatric disability is aggravated by service-connected disability, the measurable degree of psychiatric impairment due to service- connected disability should be specified. The examiner must discuss the rationale of any opinion rendered, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 4. Thereafter, the RO should readjudicate the claims on appeal. If any benefit sought on appeal, for which a NOD has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case (SSOC) and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the matter or 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 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. 2009). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).