Citation Nr: 1111463 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 08-07 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a chronic lung disorder, to include asthma. 3. Entitlement to service connection for a disability manifested by atrophy of the right hand. 4. Entitlement to service connection for an acquired psychiatric disorder. 5. Entitlement to service connection for a chronic lung disorder, to include asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from March 1976 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The claims file has subsequently been assigned to the jurisdiction of the RO in Los Angeles, California. The Veteran has since moved to the jurisdiction of the VA RO in Phoenix, Arizona. The Board has had the case before it on a previous occasion, and remanded it so that a Videoconference hearing could be scheduled. All actions required by that remand have been accomplished. The Veteran appeared at a Videoconference hearing in December 2010. A transcript is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for an acquired psychiatric disorder and lung disorder 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. The RO denied the Veteran's claims for service connection for a psychiatric disorder, to include a personality disorder, and a lung disorder in a December 1985 rating decision, which is final. 2. Evidence received since the last final decision of record, which denied service connection for psychiatric and lung disorders, relates specifically to unestablished facts necessary to substantiate the claims; it raises a reasonable possibility of substantiating the claims. 3. In December 2010, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal with respect to the issue of service connection for a disability manifested by atrophy of the right hand. CONCLUSIONS OF LAW 1. Evidence received since the December 1985 rating decision is new and material and the claim for service connection for a psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 2. Evidence received since the December 1985 rating decision is new and material and the claim for service connection for a chronic lung disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). 3. The claim for entitlement to service connection for a disability manifested by atrophy of the right hand is withdrawn. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2010). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2010). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and a chronic lung disorder, and the claim for entitlement to service connection for a disability manifested by right hand atrophy is withdrawn. The non-withdrawn service connection claims require additional development on the merits, which is addressed in the remand below. Therefore, no further development is needed with respect to the aspect of the appeal decided herein. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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). Analysis-New and Material Evidence The Veteran contends that new and material evidence exists to reopen claims for entitlement to service connection for an acquired psychiatric disorder and for a pulmonary disorder, including asthma. Of record is a rating decision, dated in December 1985, which denied entitlement to service connection for psychiatric condition, to include a personality disorder, and for a lung condition. In denying the claim for a psychiatric condition, the RO noted that the Veteran had been diagnosed with a personality disorder, which is of a congenital nature, and that the record did not show he experienced an acquired mental health disorder. With regard to the claim for a lung condition, the RO noted that the Veteran did have an in-service episode of bronchospasm as a result of exposure to inhalants onboard his submarine; however, it was determined this episode was acute and transitory, and that the Veteran did not experience a chronic lung disorder at the time he filed his claim for benefits. This decision was not appealed within a year of notification to him, and it is final. Essentially, the last final decision of record denied entitlement to service connection on the basis of there being no current disability for both of the disorders claimed by the Veteran. Thus, in order to reopen his claims, the Veteran would need to show, at least potentially, that he experiences current lung and psychiatric disorders. See 38 C.F.R. § 3.156. In support of his claims to reopen, there have been numerous submissions of VA records documenting treatment for mental health and physical complaints. In these records are multiple annotations of a diagnosis of asthma, and clinical records of December 1999 indicate that the Veteran has asthma for which albuterol is prescribed. More recent records, including clinical notes from 2007, include asthma as a feature in the Veteran's primary medical history. Given this, the Board can conclude that there is most certainly evidence of a current and chronic pulmonary disability. With regards to the claimed psychiatric condition, the Board notes that the record is somewhat more silent. There are several medical records from the 1990s and the past decade which show consultation for mental health complaints; however, the vast majority of these records are in relation to treatment for amphetamine and cocaine abuse. As those conditions are representative of willful misconduct, they cannot count as a current disability for the purposes of a claim for service connection. There is, however, one clinical record, dated in January 2007, which does contain a diagnosis of an acquired psychiatric disability. In that note, the Veteran was assessed as having major depressive disorder with psychotic features in addition to polysubstance abuse in remission. At the time of this assessment, substance-induced psychosis and schizoaffective disorder were ruled out. The submission of the records pertaining to asthma and major depressive disorder are new, in that they were not of record at that time of the last final decision of record. These records are also material, in that they contain diagnoses of chronic pulmonary and acquired psychiatric disorders, the lack of which formed the basis of the earlier denial. As such, the VA clinical records relate to unestablished facts necessary to substantiate the underlying claims for service connection and they raise the possibility of substantiating those claims. See 38 C.F.R. § 3.156. As this is the case, the claims will be reopened, and to that extent only, will be granted. Withdrawal-Disability Manifested by Right Hand Atrophy Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by an appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the Veteran's Videoconference hearing in December 2010, he properly withdrew his appeal for entitlement to service connection for a disability manifested by right hand atrophy. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. ORDER New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disability is reopened; to that extent only, the appeal is granted. New and material evidence having been received, the claim for entitlement to service connection for a chronic lung disorder is reopened; to that extent only, the appeal is granted. The appeal is dismissed with respect to the claim of entitlement to service connection for a disability manifested by right hand atrophy. REMAND In reopening the claims for service connection for an acquired psychiatric disability and for a pulmonary condition, the Board notes that there is evidence of current major depressive disorder and asthma. With regard to a potential link between these disorders and service, further development is required. The Veteran was removed from naval service due to having been assessed with borderline personality disorder, with acute psychotic features, in March 1980. At the time of this assessment, it was determined that the Veteran lacked motivation to continue in the naval service, and that he was unfit for duty due to low stress tolerance, brief stress-induced psychosis, affective instability, impulsivity, unstable intense interpersonal relations, and an "inability to adapt to a military milieu." The U.S. Navy psychiatrist who made this assessment determined that the Veteran's personality disorder existed prior to service, and was not aggravated or incurred as a result of his time in the Navy. The Veteran was hospitalized at the time of this assessment. Following discharge, there are numerous episodes of treatment for substance abuse, and as noted above, the Veteran was diagnosed with major depressive disorder in January 2007. At the time of this diagnosis, the Veteran relayed that he "never got over the Army's rejection." The Veteran then went on to explain his history of hospitalization while in the Navy, so it is evident that the examiner made a transcription error in listing the incorrect branch of the Armed Forces as part of the Veteran's complaint. At the Veteran's Videoconference hearing, the Veteran contended that he had additional psychiatric problems as a result of service outside of those manifest in a personality disorder. While the Veteran seemed somewhat confused about his diagnostic history, it is apparent that he understood the need to show that an acquired psychiatric condition had been caused by his active service in the Navy. Indeed, it is implicit via a review of the record and the Veteran's testimony, that he feels his major depression was caused by his active service. That is, he contends that the psychiatric symptomatology present in service is representative of an acquired psychiatric condition as well as a personality disorder. In view of the above, there is evidence of abnormal behavior in service which required psychiatric hospitalization as well as a current diagnosis of an acquired psychiatric condition. Thus, in light of jurisprudential precedent, the Veteran is to be scheduled for a comprehensive VA psychiatric examination to determine the etiology of any acquired psychiatric disability, to include major depression, which might be currently present. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for a pulmonary condition, it is noted that a current diagnosis of asthma is of record. In service, the Veteran served aboard a submarine and had an episode of shortness of breath and bronchospasm after being exposed to an inhalant while spraying chemical solvents aboard his boat in September 1978. Given that there is some evidence of abnormal pulmonary symptoms in service, as well as a current diagnosis of asthma, the claim must be remanded so that a comprehensive VA examination addressing the contended in-service etiology can be afforded. See McLendon, supra. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. Schedule the Veteran for a psychiatric examination. The examination report should include a detailed account of all psychiatric pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should review the evidence of record with attention to the service treatment records and the records showing post-service diagnoses of psychiatric disorders. The examiner should then indicate: * The exact diagnosis of any psychiatric disorder found to be present. * Whether the borderline personality disorder, with acute psychotic features diagnosed during service was an accurate diagnosis based upon all the evidence of record. * Whether it is as least as likely as not (50 percent or greater probability) that any current psychiatric disorder is related to borderline personality disorder, with acute psychotic features diagnosed during service. The report of examination must include a complete rationale for all opinions expressed. The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for the appropriate examination for respiratory disorders. The examination report should include a detailed account of all respiratory pathology found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should review the evidence of record with attention to the service treatment records and the records showing post-service diagnoses of respiratory disorders. The examiner should then indicate: * Whether it is as least as likely as not (50 percent or greater probability) that any current respiratory disorder is related to episode of bronchospasm and shortness of breath treated during service. The report of examination must include a complete rationale for all opinions expressed. The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then, review the claims folder and ensure that all of the foregoing development has been completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the medical examination reports do not include adequate responses to the opinions requested, it must be returned for corrective action. 38 C.F.R. § 4.2; Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 5. Following the above, readjudicate the Veteran's claims of entitlement to service connection. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Then, the case should be returned to the Board for appellate review. The appellant 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. 2010). ______________________________________________ D. HAVELKA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs