Citation Nr: 1234920 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 06-00 400A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a personality disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and J.H. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to October 1973 and from November 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO) and Board remand. The issue of entitlement to service connection for an acquired psychiatric disorder is again remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Service connection for a personality disorder was denied by a December 1974 rating decision. The Veteran was notified of the decision in January 1975, and she did not perfect an appeal thereof; therefore, the December 1974 rating decision is final. 2. Evidence associated with the claims file since the December 1974 rating decision is not new and material and does not raise a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for a personality disorder. CONCLUSION OF LAW The evidence received since the December 1974 rating decision is not new and material, and therefore, the claim of entitlement to service connection for a personality disorder is not reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim to reopen the issue of entitlement to service connection for a personality disorder, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Prior to a March 2012 readjudication of the Veteran's claim, letters dated in October 2004 and March 2006 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re-adjudication of the claim). Furthermore, the October 2004 letter notified the Veteran of the regulations pertinent to her claim to reopen based on the submission of new and material evidence and of the specific evidence required to reopen. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Veteran's service treatment records, VA medical treatment records, identified private medical treatment records, and Social Security Administration (SSA) records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Although the Veteran was not provided with a VA examination addressing her claim to reopen the issue of entitlement to service connection for a personality disorder, the Board was under no obligation to provide a VA examination in this instance. VA is not required to obtain an examination for a claim to reopen a finally decided issue. 38 C.F.R. § 3.159(c). Finally, there is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the case of a claim to reopen, "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108, Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The Veteran contends that she has submitted new and material evidence sufficient to reopen her claim of entitlement to service connection for a personality disorder. In a December 1974 rating decision, the RO denied service connection for a personality disability. Notice of the December 1974 rating decision was provided to the Veteran in January 1975, but she did not perfect an appeal of that rating decision. Thus, the December 1974 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2011). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the December 1974 rating decision is the last final disallowance with regard to the Veteran's claim, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and readjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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. "New" evidence means existing evidence not previously submitted to VA. "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. See 38 C.F.R. § 3.156(a). In September 2004, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a personality disorder. In an August 2005 rating decision, the RO declined to reopen the Veteran's claim based on a finding that the Veteran did not submit new and material evidence. In September 2005, the Veteran filed a notice of disagreement. In December 2005, the RO issued a statement of the case which denied reopening the Veteran's claim. In January 2006, the Veteran perfected her appeal. In a February 2010 supplemental statement of the case, the RO reopened the Veteran's claim for entitlement to service connection for a personality disorder, and denied the claim on the merits. In a March 2012 supplemental statement of the case, the RO declined reopening the Veteran's claim. Although, in its February 2010 supplemental statement of the case, the RO determined that new and material evidence was presented to reopen the claim of entitlement to service connection for a personality disorder, this decision is not binding on the Board. Regardless of what the RO has done in this case, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b) (West 2002). Thus, the Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett, 83 F.3d at 1384; McGinnis v. Brown, 4 Vet. App. 239 (1993) (finding that Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. Although new evidence has been received with regard to the Veteran's personality disorder, none of the new evidence is material to the Veteran's claim, as personality disorders are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2011). Therefore, regardless of the evidence submitted with respect to this claim, service connection for a personality disorder is precluded as a matter of law. Accordingly, none of the evidence received since the December 1974 rating decision raises a reasonable possibility of substantiating the Veteran's claim. Since the additional evidence received since the December 1974 rating decision is not material and does not raise a reasonable possibility of substantiating the Veteran's claim, it does not constitute new and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a personality disorder. As new and material evidence to reopen the finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted, the claim to reopen the issue of entitlement to service connection for a personality disorder is denied. REMAND Additional development is necessary in order to comply with VA's duty to assist with regard to the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Although the Veteran was provided with a new VA examination in October 2010 with regard to the etiology of her psychiatric disability, the Board finds that further explanation and rationale is needed by the VA examiner who conducted the October 2010 VA examination. Initially, the Board observes that the October 2010 VA examiner diagnosed depressive disorder, not otherwise specified; panic disorder in full remission; and bulimia. The examiner found that a diagnosis of bipolar disorder was not warranted at that time based on the Veteran's symptoms. After reviewing the Veteran's claims file, the examiner stated that the Veteran's bulimia existed in 1972, prior to military service, based on a November 1977 discharge note which "indicated anorexic behavior as far back as 1972." Nevertheless, the Veteran's December 1972 entrance examination revealed her psychiatric status to be normal, and a history of disordered eating was not noted. There is no medical evidence conclusively showing that the Veteran had an eating disorder prior to service. In the absence of competent medical evidence rebutting the presumption of soundness, the Veteran's bulimia cannot be said to have pre-existed military service. The examiner concluded that she was "not able to definitively link the veteran's depression, anxiety or eating disorder to her military experience" and that it was "less likely than not that the veteran's current diagnoses were caused by or aggravated by military experience" noting only that there was no evidence to substantiate the Veteran's contention that she was raped during service. However, as noted by the examiner, the Veteran's service treatment records document psychiatric symptoms during service, including a suicide attempt in June 1973 with depression for the six months before that. There is substantial evidence that the Veteran had depressive and anxiety symptomatology during her active duty service. The VA examiner did not provide any rationale for the conclusion that the Veteran's current depression, anxiety, or eating disorder are not related to her active duty service, to include her psychiatric symptomatology during service, as shown in the service treatment records. Moreover, the examiner did not address the Veteran's reports that she has had psychiatric symptoms continuously since her active duty service. Accordingly, the claims file should be returned to the VA examiner who provided the October 2010 VA examination to provide additional explanation and rationale for the opinion that the Veteran's currently diagnosed psychiatric disabilities are not related to her inservice psychiatric symptomatology. Accordingly, the case is remanded for the following action: 1. The VA examiner who conducted the October 2010 VA examination must be contacted and requested to provide further explanation and rationale for the conclusion that the Veteran's diagnosed depression, anxiety, and eating disorder are not related to her active duty service. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must provide an opinion as to whether the Veteran's diagnosed depression, anxiety, or eating disorder are related to her documented inservice psychiatric symptomatology, including the noted depression, anxiety, and suicide attempt. Additionally, the RO must advise the VA examiner that the Veteran's lay statements of record are competent evidence of symptomatology during service and after service discharge. The VA examiner must consider and address the Veteran's lay statements that she has had psychiatric symptoms continuously since active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. If the VA examiner who conducted the October 2010 VA examination is no longer available, the Veteran must be provided with a new VA examination addressing the etiology of her diagnosed psychiatric disabilities. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the evidence of record, to include the service and post-service treatment records, as well as the Veteran's lay statements of record, and a discussion of each, the examiner must provide an opinion as to whether the Veteran's currently diagnosed psychiatric disorders, including depression, anxiety and bulimia, are related to her active duty service, to include the documented inservice psychiatric symptoms. Additionally, the RO must advise the VA examiner that the Veteran's lay statements of record are competent evidence of symptomatology during service and after service discharge. The VA examiner must consider and address the Veteran's lay statements that she has had psychiatric symptoms continuously since active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the requested medical opinion has been provided, the RO must review the medical report to ensure that it is in complete compliance with the directives of this remand. The medical report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 5. The RO must then re-adjudicate the Veteran's claim for service connection. If the benefit sought on appeal remains denied, the Veteran and her representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs