Citation Nr: 1123639 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 09-11 017A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, depression, bipolar disorder, and schizoaffective disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and her son ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to January 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appeal is REMANDED to the agency of original jurisdiction (the AOJ), which is the RO via the Appeals Management Center (AMC), in Washington, DC). VA will notify the appellant if further action is required. REMAND Procedural clarification Although the decision that gave rise to this appeal was one in which the RO denied a claim of entitlement to service connection for PTSD, the record documents that the Veteran has been diagnosed with psychiatric diseases other than PTSD and her claim is more properly viewed as one of disability due to any of these psychiatric diseases. In 2009, the U.S. Court of Appeals for Veterans Claims (Veterans Court) issued Clemons v. Shinseki, 23 Vet. App. 1 (2009). That case involved a claim in which claimant requested service connection for PTSD. The Veterans Court explained as follows: Although the appellant's claim identifies PTSD without more, it cannot be a claim limited to only that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits. Id. at 5. VA must take into account what other psychiatric diseases the veteran has been diagnosed as suffering from during the course of his or her claim and appeal. Id. at 5-6. VA treatment records document that over the course of this case, the Veteran has been diagnosed as suffering from schizoaffective disorder (August 2007), schizoaffective disorder - bipolar type (January 2008), PTSD (January 2008), generalized anxiety disorder (July 2004), bipolar I and a mood disorder (January 2008), bipolar disorder (September 2010), and major depressive disorder and major depression (February 2009). These diagnosed conditions are often listed following discussion of alleged in-service incidents and therefore whether service connection is warranted for disability due to any of the conditions is within the scope of her claim. Of note, is that in the April 2008 rating decision, the RO referred to the Veteran's claim of entitlement to service connection for PTSD as having been previously denied and indicated that the previous denial was final. As such the RO addressed whether new and material evidence had been submitted to reopen the claim. The fact that the RO may have determined that new and material evidence was or was not presented is not binding on the Board's determination of the question of whether new and material evidence has been submitted. Rather, the Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). As explained in the following paragraphs, the previous denial of service connection for PTSD is not a final denial. Similarly, although the RO also previously denied service connection for depression, that previous decision is not final. This is because new and material evidence was added to the record within the appeal period of each of those previous decisions. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461 (2009); Buie v. Shinseki, 24 Vet. App. 242 (2011). Taking Clemons and the lack of finality of any of the prior decisions into account, the Board has characterized the issue as shown on the title page. The Board now provides a fuller explanation so that the Veteran is not confused by these references. Once the AOJ denies a claim, the claimant has one year from the date of notification of the determination in which to initiate an appeal to the Board by filing a notice of disagreement with the AOJ. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. § 20.302(a) (2010). If a notice of disagreement is not received within that time period, the decision becomes final and, in general, the claim may not thereafter be reopened and allowed on the same factual basis. 38 U.S.C.A. § 7105(c) (West 2002). If the claimant does file a timely notice of disagreement, the AOJ must either resolve the appeal or issue a statement of the case. 38 U.S.C.A. § 7105(d) (West 2002). After a statement of the case is issued, the appellant has 60 days from the mailing of the statement of the case or the remainder of the one year period from the mailing of the determination being appealed to file a substantive appeal (generally by filing a VA Form 9), also referred to as perfecting the appeal. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.302(b) (2010). If the appellant does not timely perfect the appeal the AOJ may close the case and the determination becomes final. 38 U.S.C.A. § 7105(d) (West 2002). The exception to that rule is that the claim may be reopened and reviewed if new and material evidence has been submitted. 38 U.S.C.A. § 5108 (West 2002). New and material evidence is defined as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2010). New and material evidence received prior to expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(a) (2010). At the stage of determining if evidence is new and material, the Board is generally precluded from considering the credibility of the evidence, and must presume that the evidence is credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The exception is where the new evidence is patently incredible. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Whether a claim is determined to be the same claim as was previously denied as opposed to a new claim, depends on whether the factual basis of the two claims is the same. Boggs v. Peake, 520 Fed. Cir. 1330, 1334 (2010). If two claims are based on distinctly and properly diagnosed diseases or injuries the two claims cannot be considered the same claim. Id. at 1335. In the instant case therefore, to the extent that the Veteran's claim encompasses diseases other than PTSD and depression, the claim is a new claim. To the extent that it encompasses PTSD and depression, the Board must determine if the decisions in which the RO disallowed service connection for disability due to PTSD and depression are final and, if so, whether the claim can be reopened as to those diseases. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For convenience the Board refers to these elements of a service connection claim as the Shedden elements. Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM- IV). Id., see also 38 C.F.R. § 4.125(a) (2010). In August 2003, the RO denied the Veteran's claim for service connection for depression because, although the Veteran had been diagnosed as suffering from depression post service, the RO determined that the 2nd Shedden element had not been met. She initiated an appeal of that decision in September 2003 and the RO issued a statement of the case (SOC) in September 2004. The appeal period therefore extended to 60 days from the date of the issuance of the SOC. When the RO issued the August 2003 decision the record did not contain any reference to any event during the Veteran's service in connection with her depression. In January 2004, the Veteran submitted a writing in which she stated that she would like to file on behalf of her hospitalization for depression and PTSD. VA treatment notes from June 2004, printed that same month, include a general psychiatry note documenting that during service she witnessed an accident in which another service person was killed during his participation in a softball game. She explained that she tried to comfort this person and believes that she underwent a significant change in her personality and demeanor after this event. She reported that she continued to be troubled by this event to the present day. She continued to report this alleged in-service event, for example, in a multi page document from July 2004. Also of record is a letter from a VA physician from that same month explaining that the Veteran was being followed in the clinic for major depression, generalized anxiety disorder, and PTSD. This evidence was received during the August 2003 decision's appeal period. Her report of this in-service incident is best viewed as the report of an in-service psychological injury, and therefore relates to an unestablished fact necessary to substantiate her claim. There was not any earlier reference to this incident. The nature of the report is such that it raised a reasonable possibility of establishing her claim. This evidence was therefore new and material evidence. In Young v. Shinkseki, 22 Vet. App. 461 (2009), the Veterans Court discussed new and material evidence received within the appeal period as such relates to whether a decision becomes final. Although 38 C.F.R. § 20.304 provides that in general the filing of additional evidence after receipt of notice of an adverse decision does not extend the time period for initiating or completing an appeal of that determination, the Veterans Court cited to its own binding decisions as well as those of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), stating that such "jurisprudence makes clear that VAs' failure to follow its own procedures may result in a lack of finality of the underlying RO or Board decision at issue." Id. at 468. In a more recent case, the Veterans Court explained that where there had been multiple decisions, with evidence added to the record within the appeal period of each decision, the Board must conduct a 38 C.F.R. § 3.156(b) analysis in order to determine whether any of the decisions were final. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). There are no decisions after the August 2003 decision in which the RO adjudicated a claim of entitlement to service connection for depression. Application of 38 C.F.R. § 3.156(b), as informed by Young, leads the Board to the conclusion that the August 2003 decision is therefore not final. The Board makes this distinction so that it is clear that the Board is not reopening the claim of entitlement to service connection for disability due to depression; there is no final decision regarding service connection for disability due to depression. Of note, this does not deprive the Board of jurisdiction to address the Veteran's appeal to the extent that the claim is one of entitlement to service connection for disability due to psychiatric disease. The issue of whether she is entitled to service connection for a depressive disorder is part of her claim for service connection for disability due to any acquired psychiatric disease and the Board has jurisdiction over all parts of that claim. Next the Board turns to the issue of entitlement to service connection for PTSD. On October 14, 2004 the RO mailed to the Veteran notice of the denial of claim of entitlement to service connection for PTSD. An unestablished fact that was the basis for that denial was that an in-service stressor had not been verified. In other words, the 2nd Shedden element had not been satisfied. At that time, the evidence consisted of service treatment records and post service treatment records as well as the Veteran's statements. There was no mention of the Veteran suffering from PTSD due to being the victim of an in-service personal assault (also referred to in this case as MST or military sexual trauma). She had referred only to the softball game incident. The Veteran did not file a notice of disagreement with the October 2004 decision within one year of the mailing of notice of the determination. In November 2004, a statement from "T.T." was added to the record. T.T. stated that she remembered the incident in which Corporal "B." was hit in the head with a softball and suffered a fractured skull. In December 2004 treatment notes there is an answer to a standardized question indicating that the Veteran reported experiencing military sexual trauma. VA treatment notes from March 2005 document her report of MST. Although the Board notes that VA treatment records are constructively of record, in this case, the March 2005 records appear to have been physically added to the claims file in August 2005, within one year of notice of the October 2004 rating decision. On August 25, 2005, the RO disallowed the claim of entitlement to service connection for PTSD, explaining that the October 2004 rating decision was final and no new and material evidence had been added to the record since that decision. In this claim of entitlement to service connection for PTSD denied for lack of showing of an inservice stressor, the initial report from the Veteran, coming after that denial, that she had been the victim of MST the Board finds to be new and material evidence. Similarly, the letter in which T.T. referred to the Veteran and provided corroboration of the occurrence of the alleged softball injury (although not of the Veteran's presence at the time of the injury) must be considered as new and material evidence in this case. As both of those reports were of record within one year of notice of the October 2004 rating decision, that decision did not become final. Nor does the Board find that the August 2005 decision became final. In July 2006, within one year of the mailing of the August 2005 determination, the Veteran submitted a letter from "C.E." who stated that he knew the Veteran from February 1988 to January 1989 and that he observed a significant change in her behavior after she witnessed the softball game incident. This letter relates to the unestablished fact of the alleged softball game stressor and raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disability, and is therefore new and material evidence. The Veteran continued to submit evidence going to the occurrence of the alleged MST personal assault and the alleged stressor involving an injury to another person during a softball game. She also continued to submit statements claiming entitlement to service connection for PTSD, including a July 2006 letter submitted by her representative. The RO interpreted that July 2006 letter as a claim to reopen a previously denied claim of entitlement to service connection for PTSD and in February 2007 issued a decision in which it determined that new and material evidence had not been submitted to reopen the claim. In a September 2007 writing, the Veteran reported that after the alleged incident involving the softball game injury, her behavior changed, she was required to attend mandatory unit counseling because of her changed behavior, and she was constantly moved from job to job. January 2008 VA treatment notes include diagnoses of schizoaffective disorder and PTSD secondary to MST. The Veteran's report that she was required to attend mandatory unit counseling due to her changed behavior and that she was moved from job to job must be taken as credible for the purpose of determining if it is new and material evidence. Again, this statement relates to an unestablished fact in the previous denial because it is evidence of the occurrence of an in-service stressor. Although she refers to the alleged softball game incident, her assertion of MST complicates the matter and the Board therefore finds that the evidence relates to the unestablished fact of an in-service personal assault stressor and raises a reasonable possibility of substantiating that claim. See 38 C.F.R. § 3.304(f)(5) (as amended by 75 Fed. Reg. 39843, 39852 (July 13, 2010) & 75 Fed. Reg. 41092 (July 15, 2010)). Hence, within one year of the February 2007 disallowance of her claim, new and material evidence was added to the record. The Veteran continued to claim entitlement to service connection for PTSD and in April 2008 the RO issued the decision that the Veteran appealed, conferring jurisdiction on the Board. Thus, new and material evidence was received during the appeal period following each of the decisions disallowing service connection for PTSD. The Board therefore finds that none of those decisions are final. See Young v. Shinseki, 22 Vet. App. 461, 469 (2009) (Section 3.156(b) is intended to be a veteran-friendly provision....). There is no need to order that the claim of entitlement to service connection for PTSD be reopened because the receipt of new and material evidence during the appeal periods effectively prevented the disallowances from becoming final. 38 C.F.R. § 3.156(b). Necessity of remand Now the Board turns to the reasons that it is remanding this case. First, VA has a duty to assist the Veteran in obtaining relevant evidence. 38 U.S.C.A. § 5103A(b,c); 38 C.F.R. § 3.159(c). Review of the record shows that this duty has not been met. December 2004 VA treatment notes document that the Veteran reported filing a claim for Social Security Administration (SSA) disability benefits. During the March 2011 hearing she testified that she had applied for SSA disability benefits. March 2011 transcript at 15. Given that she reported this in the context of her claim for service connection for psychiatric disability, it follows that there is a distinct possibility that the records are relevant. Review of the claims file fails to disclose that records associated with a claim for SSA disability benefits have been obtained or requested. On remand this must be accomplished. Associated with the claims file are only a few pages from her service personnel file, apparently obtained in July 2004 pursuant to a request for less than her complete service personnel record. The Veteran has stated that she was transferred from job to job and required to attend counseling during service because of a behavior change which she attributes to experiencing an in-service stressor. She also testified that she was sexually harassed upon her return to California from service in Europe and filed a complaint. March 2011 transcript at 13. During an October 2008 clinical PTSD interview, she reported that she was subject to an Article 15 proceeding for her commission of an assault but the charges were dropped. These reported alleged events are potentially relevant to her claim. On remand the agency of original jurisdiction must make all necessary efforts to obtain her complete service personnel record. In September 2007, the Veteran submitted a completed VA Form 21-4142, Authorization and Consent to Release Information to VA, specifying treatment by "M.J.A." from 2001 to 2002 for depression. As the Veteran specified relevant information that has not been obtained, on remand the AOJ must notify the Veteran to submit a more recent, and therefore valid, VA Form 21-4142 and then assist her in obtaining this evidence. VA's duty to assist a claimant in substantiating a claim includes providing a medical examination and obtaining an expert opinion if certain factors are present. Those factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Here, the Veteran has been diagnosed with several different psychiatric diseases. During the hearing before the undersigned, her son testified that he was present at the softball game where one of the alleged stressors occurred and witnessed the Veteran's change in behavior following that game. March 2011 transcript at 4-5. As already mentioned, C.E. provided evidence that the Veteran's behavior changed after the alleged softball game incident. Service treatment records include a November 1991 report of medical history, for the purpose of separation from active duty, in which the Veteran checked a selection box indicating that she either then had or had previously had depression or excessive worry and checked a selection box that she did not know if she then had or had previously had nervous trouble of any sort. A clinician annotated the report in a summary section, including an annotation of "personal problems resolved." This evidence is sufficient to trigger VA's duty to afford the Veteran an examination and obtain an expert opinion. Finally, it is not clear from the record that VA has provided the Veteran with complete notice required under the Veterans Claims Assistance Act (VCAA). Although there are notice letters addressing the PTSD part of her claim (for example in December 2007) and notice letters addressing the depression part of her claim (for example in June 2003 and in June 2004) there is no notice letter addressing the full breadth of her claim (to include any acquired psychiatric disorder). On remand, the AOJ must provide the Veteran with such notice. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran that accomplishes the following: (a) Provide her with notice consistent with the VCAA regarding a claim of entitlement to service connection for an acquired psychiatric disorder, to include disability from any psychiatric disease or injury including but not limited to PTSD, generalized anxiety disorder, depressive disorder, schizoaffective disorder, and bipolar disorder. (b) Provide her with multiple copies of VA Form 21-4142 and ask her to complete a form for each provider who has provided treatment for any of her psychiatric disorders. Specifically, instruct her to complete a VA Form 21-4142 for records of treatment by "M.J.A." from 2001 to 2002 for depression. The AOJ should refer to M.J.A.'s complete name and should send her a copy (not the original) of the September 2007 VA Form 21-4142 for her reference. Assist the Veteran in obtaining such records and associate all obtained records with the claims file. If any requested records are not obtained, provide the Veteran with written notice consistent with the content requirements of 38 C.F.R. § 3.159(e). 2. Obtain copies of adjudicative determinations and associated medical records of any claim by the Veteran for SSA disability benefits and associate the records with the claims file. If the records are not obtained, obtain negative responses and associate such responses with the claims file and provide the Veteran with written notice consistent with the content requirements of 38 C.F.R. § 3.159(e). 3. Obtain the Veteran's complete service personnel records and associate the records with the claims file. If the records are not obtained, provide the Veteran with written notice consistent with the content requirements of 38 C.F.R. § 3.159(e). 4. After the above development is completed and the AOJ has reasonably ensured that there are no additional outstanding obtainable relevant records, to include VA and Vet Center reports, ensure that the Veteran is scheduled for a VA compensation and pension examination. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner is asked to accomplish the following: (a) Identify all psychiatric disorders from which the Veteran has suffered since she filed her claim for compensation for a psychiatric disability in March 2003. Of note, the claims file includes diagnoses of schizoaffective disorder, generalized anxiety disorder, bipolar disorder (either schizoaffective type or bipolar depression), PTSD, and depression (including major depressive disorder). (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any behavior changes were demonstrated in service or shortly thereafter and, if so, whether such changes may be indicative of a personal assault having been committed upon the Veteran in service. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. (c) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any of the identified psychiatric disorders suffered by the Veteran at any time from March 2003 to the present had onset during her active service or were caused by her active service. Reconcile any current findings with the previous diagnoses of record. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. 5. Then after taking any other developmental action deemed appropriate, readjudicate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, depression, bipolar disorder, and schizoaffective disorder. If the benefit sought is not granted, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. 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 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). _________________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2010).