Citation Nr: 1237646 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 06-37 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disability (other than PTSD), to include bipolar disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from July 1977 to January 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA) that found that new and material evidence had not been received to reopen the claims for service connection for PTSD and a mental illness to include bipolar disorder. The Veteran was scheduled for a personal hearing before a Veterans Law Judge at the RO in May 2008. However, he canceled the hearing and did not request that it be rescheduled. In October 2010, the Board remanded the case for further evidentiary development. The case has now been returned to the Board for appellate review. The reopened claim of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a January 2004 rating decision, the RO denied the Veteran's initial claim for entitlement to service connection for PTSD; the Veteran did not perfect an appeal of the decision. 2. Evidence received since the January 2004 RO decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for entitlement to service connection for PTSD. 3. In a January 2004 rating decision, the RO denied the Veteran's initial claim for entitlement to service connection for a psychiatric disability (other than PTSD), to include bipolar disorder; the Veteran did not perfect an appeal of the decision. 4. Evidence received since the January 2004 RO decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a psychiatric disability (other than PTSD), to include bipolar disorder. CONCLUSIONS OF LAW 1. The January 2004 RO decision that denied the Veteran's claim for service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2011). 2. The January 2004 RO decision that denied the Veteran's claim for service connection for a psychiatric disability (other than PTSD), to include bipolar disorder, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2011). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a psychiatric disability (other than PTSD) to include bipolar disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (noting that VCAA notice errors are reviewed under a prejudicial error rule). In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) specifically addressed VCAA notice requirements in the context of a claimant's request to reopen a previously and finally denied claim. The Court found that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must provide notice that describes what evidence would be necessary to substantiate the element or elements required to establish the benefit sought that were not found in the previous denial. In a February 2006 letter, prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to reopen a previously denied claims ((including the specific bases for the prior denials), what information and evidence is necessary to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. In an August 2007 letter, after the rating decision on appeal, he was also advised of how disability ratings and effective dates are assigned. The Board finds that any deficiency with respect to the timing of the notice provided is harmless. The notice discussed above fully complied with the requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. § 3.159, and the Veteran was fully informed of the evidence that was needed to support his claims. Moreover, following the notice, the RO readjudicated the issues on appeal, most recently in a March 2012 supplemental statement of the case. Thus, the Board concludes that there is no prejudice to the Veteran due to any defect in the timing of the notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). Hence, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any deficiency that requires corrective action. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, VA and private treatment records, VA examination reports, Social Security Administration records, lay statements, and the Veteran's statements. In October 2010, it was noted that VA treatment records were outstanding and those records were obtained and associated with the file. The Veteran was not afforded a VA examination specifically in conjunction with his petition to reopen the claim for service connection for a mental illness to include bipolar disorder. The Board observes that VA has no specific duty to conduct an examination with respect to the claim on appeal requiring the presentation of new and material evidence to reopen it because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). As described in further detail below, the Veteran has not presented new and material evidence sufficient to reopen this claim. Hence, VA does not have an obligation to schedule an examination or obtain an opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (finding that a veteran is required to show some causal connection between his disability and his military service). Consequently, the Board finds that VA's duty to assist has also been met in this case. Analysis A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2011). If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). 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) (2012). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as a psychosis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). The RO denied the Veteran's initial claims for service connection for PTSD and a mental illness, to include bipolar disorder, in a January 2004 rating decision. The evidence of record at the time of the decision included the Veteran's service treatment records, which denoted an isolated instance of complaints of nervousness in 1978; however, upon separation examination, the Veteran denied symptoms of a mental disorder and clinical evaluation was within normal limits. VA outpatient treatment records, dated from January 2001 through May 2003, showed diagnoses of an anxiety disorder, not otherwise specified, and bipolar disorder. Upon VA examination in December 2003, the Veteran gave a history of drug and alcohol use beginning at age 13. He reported harassment during basic training with name calling and having a blanket thrown over him and being beaten on one occasion. He recalled that the perpetrators threatened to rape him if he told anyone about the beating. Following mental status examination and psychological testing, the diagnoses were polysubstance abuse, generalized social phobia, and depressive disorder. The examiner noted that the polysubstance abuse and generalized social phobia preexisted service and were aggravated in service. The examiner opined that the depressive disorder seemed to be a natural consequence of social, financial and legal consequences of his drug abuse. In the January 2004 rating decision, the RO denied the claims, concluding that the Veteran did not have a diagnosis of PTSD. Additionally, it was concluded that the evidence did not support a finding that the Veteran had a mental disability that had its onset in service or was aggravated by service since there was no treatment or diagnosis for such disabilities in service, continuity of symptomatology had not been adequately demonstrated, and bipolar disorder was not manifest to a compensable degree within one year of his discharge from military service. Notice of the determination and his appellate rights were issued in February 2004. The Veteran filed a notice of disagreement and a statement of the case was mailed under cover letter dated March 17, 2005. The Veteran did not file a substantive appeal. Hence, the decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2011). In January 2006, the Veteran requested that his claim be reopened. The additional evidence associated with the file includes the Veteran's assertions that he was sexually assaulted in the shower during basic training (sodomized and forced to perform fellatio) and VA treatment reports and a VA examination report that denoted diagnoses of PTSD and bipolar disorder. With regard to the claim for service connection for PTSD, the Board finds this additional evidence is new, in that it was not previously of record, and it is also material as it relates to a prior basis for denial of the claim, i.e., whether the Veteran had a current diagnosis of PTSD. Additionally, the Veteran has now alleged that he was sexually assaulted in service. Solely for the purpose of determining whether to reopen the claim, this evidence is presumed credible. See Kutscherousky, supra. Thus, new and material evidence has been received to reopen the claim for service connection for PTSD. To this extent only, the appeal is allowed. With regard to the claim for service connection for a psychiatric disability other than PTSD, to include bipolar disorder, the Board observes that the prior denial was based on finding that the Veteran was not diagnosed with a psychiatric illness in service (nor had it been demonstrated that one preexisted on his entry to active duty), and bipolar disorder was not manifest to a compensable degree within one year of discharge. The Board finds the additional documents, treatment records, lay statements and statements of the Veteran associated with the claims file since the January 2004 denial are new, in that they were not previously of record; however, they do not raise a reasonable possibility of substantiating the claim. Hence, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a psychiatric disability other than PTSD, to include bipolar disorder. In sum, the additional evidence fails to show that the Veteran's current psychiatric impairment, to include bipolar disorder, had its onset in service or that bipolar disorder or another psychosis was manifest to a compensable degree within one year of his discharge from active duty. To be new and material, the evidence must ultimately raise a reasonable possibility of substantiating the claim. However, the deficiencies noted as the basis for the prior final denial remain unestablished. Hence, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for a psychiatric disability other than PTSD, to include bipolar disorder. ORDER New and material evidence has been received to reopen the claim for service connection for PTSD; to this extent only the appeal is granted. New and material evidence has not been received to reopen the claim for service connection for a psychiatric disability (other than PTSD), to include bipolar disorder; the appeal is denied. REMAND As discussed above, the Veteran's claim for service connection for PTSD has been reopened. The Veteran has presently alleged that he has PTSD as a result of a sexual assault that took place during basic training. An attempt to verify the claimed stressor has not been made by the RO. Additionally, as the Veteran's claim is based on a claimed in-service sexual assault/harassment, VA has a heightened notification obligation, to include to (i) notify him of alternative forms of evidence that may serve to corroborate his account, to include the opinion of a medical professional, (ii) suggest other potential sources of evidence and (iii) assist the Veteran in submitting evidence from alternative sources, by providing additional time for such submission after an adequate notice letter has been provided. See 38 C.F.R. § 3.304(f)(5) (2012); see also Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011); Gallegos v. Peake, 22 Vet. App. 329 (2008). The VCAA notice letters included in the file are inadequate in this regard and such notice must be provided to the Veteran before any further adjudication of the claim. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notification letter, informing him of the information and evidence required to substantiate a claim for service connection for PTSD based on sexual assault. The letter should be in accordance with 38 U.S.C.A. § 5103(a) (West 2002), 38 C.F.R. § 3.159(b) and 38 C.F.R. § 3.304(f)(5) (2012) as required for PTSD claims based on in-service personal assault or harassment. In particular, the notice must advise the Veteran that evidence from sources other than his service records and evidence of behavior changes may constitute credible supporting evidence of the in-service stressor. Then allow the Veteran the opportunity to furnish this type of evidence and to advise VA of potential sources of such evidence. All development letters should be associated with the claims folder. 2. Send the Veteran a letter requesting as much detail as possible regarding the alleged sexual assault(s) that took place during basic training, including approximate dates, the names of the soldiers involved, and the names of any potential witnesses. 3. After the above steps have been accomplished, the RO should review the record pertaining to the alleged stressors and attempt to verify them through any official channels if appropriate. 4. Contact the Veteran and request the names and addresses of all medical care providers who have treated the Veteran for PTSD since March 2012. After securing the necessary release, attempt to obtain these records. The Veteran and his representative should be notified of any unsuccessful attempt to obtain identified records. 5. Thereafter, schedule the Veteran for another VA psychiatric examination for the purpose of ascertaining the nature and likely etiology of any currently diagnosed PTSD. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. All indicated testing should be conducted. a. Prior to the examination, the RO must identify for the examiner any stressor or stressors that are deemed verified by the record. b. The examiner must opine as to whether the evidence supports a finding that the claimed in-service assault occurred. c. Thereafter, the examiner should conduct a VA psychiatric examination. If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record (whether by the RO or in the case of the alleged personal assault, in the examiner's opinion) was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether it is at least as likely as not that there is a link between the current symptomatology and one or more of the in-service stressors sufficient to produce PTSD. In offering these assessments, the examiner must acknowledge and comment on any lay evidence indicating a change in the Veteran's behavior as compared to his personality prior to entering active duty. Any opinions expressed by the examiner must be accompanied by a complete rationale. If the examiner cannot reach a conclusion without resorting to speculation, it should be so stated in the examiner's report, with an explanation as to why. 6. After the above development has been fully accomplished, adjudicate the reopened claim of entitlement to service connection for PTSD. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. The appellant 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. 2011). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs