Citation Nr: 1044567 Decision Date: 11/29/10 Archive Date: 12/03/10 DOCKET NO. 06-25 556 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for an innocently acquired psychiatric disorder, to include as secondary to the service- connected lower lip scar. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from September to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision. In August 20008, the Board remanded the matter for additional notice and consideration of newly received evidence. Although the RO appeared to adjudicate the claim on the merits in an August 2010 Supplemental Statement of the Case (after obtaining a nexus opinion), the Board must initially consider whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). For this reason, the Board has characterized the issues as set forth on the preceding page. The reopened claim of service connection for an innocently acquired psychiatric disorder is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In June 1997, the Board declined to reopen the previously denied claim of service connection for an innocently acquired psychiatric disorder. 2. The evidence added to the record since the previous decision of the Board does relate to a previously unestablished fact necessary to support the claim of service connection and does raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for an innocently acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective on May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of the VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). With respect to claim to reopen, the Board notes that the Court has held that, because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further held that the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Legal Criteria and Analysis A June 1997 Board decision declined to reopen the claim of service connection for an innocently acquired psychiatric disorder. This Board action represents the last final decision on any basis as to the issue of entitlement to service connection for an innocently acquired psychiatric disorder. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100; Evans v. Brown, 9 Vet. App. 273 (1996). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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). The Board's June 1997 rating decision declined to reopen a claim for service connection for an innocently acquired psychiatric disorder essentially based on a finding that new and material evidence that suggested a nexus between an innocently acquired psychiatric disorder and service or a service-connected disability has not been submitted. However, since the June 1997 decision, additional evidenced was received that addressed this fact and is adequate to reopen the claim for service connection. Specifically, the record contains a February 2009 VA treatment record that suggest there is a relationship between a current innocently acquired psychiatric disorder and the Veteran's service. When determining whether a claim should be reopened, the credibility of newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). This evidence is new because it was not previously of record. The Board finds the evidence is material because it relates to an unestablished fact necessary to substantiate the claim. Specifically, the record supports the Veteran's contention that his psychiatric disorder is related to service. Further, when considered along with the December 1979 lay statement from a former serviceman who alleges he witnessed an attack on the Veteran during service, the evidence raises a reasonable possibility of substantiating the claim. Accordingly, the additional evidence received since the June 1997 Board decision is new and material and the claim of service connection for an innocently acquired psychiatric disorder is reopened. ORDER As new and material evidence has been submitted to reopen the claim of service connection for an innocently acquired psychiatric disorder, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND Additional notice in needed prior to the Board considering the matter of service connection for an innocently acquired psychiatric disorder on the merits. In May 2005, June 2005 and January 2009 letters, the RO informed the Veteran of the requirements to establish the underlying claim of secondary service connection. However, notice was not provided with respect to direct service connection. Since the nexus evidence used to reopen the claim applies to direct service connection, appropriate corrective notice is required. In light of the new evidence and opinion, the Veteran should also be afforded a VA examination that takes into account all of the pertinent evidence of record. Accordingly, the reopened claim is REMANDED to the RO for the following action: 1. The Veteran must be sent corrective notice required by VCAA regarding the evidence needed to support a claim of direct service connection. The Veteran and his representative should be given a reasonable time to respond. 2. The RO should take appropriate steps to contact the Veteran in order to obtain any medical records referable to treatment of the claimed innocently acquired psychiatric disorder since service that may outstanding. Based on his response, the RO should take all indicated steps to fully develop the evidentiary record to the extent possible. 3. Then, the RO schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed innocently acquired psychiatric disorder. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current innocently acquired psychiatric disability had its clinical onset in service or is otherwise related to an event or incident of the Veteran's period of active service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. Following completion of all indicated development, the claim of service connection for an innocently acquired psychiatric disorder should be readjudicated in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the matter should be returned to the Board for appellate consideration. The Veteran 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. 2010). ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs