Citation Nr: 1301644 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 99-22 291A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for a psychiatric disorder. 2. Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1971 to September 1973, from February 1975 to February 1977, and from March 1979 to May 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 1998 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2000, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is in the Veteran's file. In January 2005, the Board remanded the case for further development. In a decision in October 2008, the Board denied the appeal to reopen the claim of service connection for a psychiatric disorder. The Board also determined that the claim of service connection for posttraumatic stress disorder was a separate claim and remanded the claim for further development. The Veteran then appealed the Board's decision that denied the claim to reopen to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision in March 2010, the Court found that the Board had not adequately discussed the Veteran's lay testimony and vacated and remanded the claim to the Board for further adjudication. The Board previously had remanded the claim seeking service connection for posttraumatic stress disorder in October 2008 so that proper notice under the Veterans Claims Assistance Act of 2000 (VCAA) could be given to the Veteran. As the requested development has not been completed, further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2011 the Board ordered a remand of the claims so that the Veteran could be afforded the opportunity for a hearing. In July 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The claim of service connection for traumatic brain injury has been raised by the record (July 2012 Attorney written submission), which is referred to the RO for appropriate action. The reopened claim of service connection for a psychiatric disorder and the claim of service connection for posttraumatic stress disorder are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In a rating decision in July 1992, the RO denied the claim to reopen service connection for a nervous condition finding that no new and material evidence to reopen a claim for service connection had been submitted; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not perfect an appeal of the adverse determination. 2. The additional evidence presented since the rating decision in July 1992 by the RO is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The rating decision in July 1992 by the RO, denying service connection for a nervous condition, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012). 2. The additional evidence presented since the rating decision in July 1992 is new and material, and the claim of service connection for a psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the application to reopen the claim of service connection for a psychiatric disorder is resolved in the Veteran's favor, further discussion here of compliance with the VCAA with regard to this claim to reopen is not necessary. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the prior rating decision in July 1992 by the RO became final, a claim may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. §§ 7105(c) and 5108. Regardless of the RO's characterization of the claims, the Board is without jurisdiction to consider the merits of a claim of service connection in the absence of a finding that new and material evidence has been presented. The Board therefore must determine whether new and material evidence has been received to reopen the previously denied claims. Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001). As the Veteran's application to reopen the claim of service connection was received before August 29, 2001, the previous regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (1998). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). New and Material Evidence Claim Procedural History In June 1980, the Veteran filed his initial claim of service connection for a nervous condition. The RO denied the claim in a rating decision mailed in November 1980 on the basis that the acute, transient, situational disturbance, assessed in the third enlistment was not a disability within the meaning of the law for which disability may be paid. The RO had considered the service treatment records for the Veteran's three enlistment periods and a VA discharge summary for inpatient treatment dated April 1979 to May 1979. The Veteran did not perfect an appeal by filing a substantive appeal and the determination by the RO in November 1980 became final by operation of law. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. In June 1981, the Veteran submitted a request to reopen the claim. The RO had considered lay statements by the Veteran, VA treatment reports, lay statements dated in September 1981 from the Veteran's then wife, father and mother, and a September 1981 statement from private physician Dr. Claterbaugh. In November 1981 the RO issued a rating decision that denied service connection, finding that the current treatment records did not show a nervous condition that was incurred or aggravated by service. After the Veteran filed a notice of disagreement and he was furnished a statement of the case in January 1982, he did not file a substantive appeal. By operation of law the rating decision of November 1981 became final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a). In June 1984, the Veteran submitted a claim seeking service connection for various disorders that included a nervous condition. Though he submitted private treatment reports dated in 1984, he failed to appear for a scheduled VA examination in September 1984, and the RO determined in November 1984 that the Veteran had failed to prosecute the claim and so, it could not issue a rating. In June 1992, the Veteran submitted a claim seeking service connection for a nervous condition. No evidence was submitted with the claim. In July 1992, the RO denied service connection, finding new and material evidence had not been submitted. The Veteran did not appeal and by operation of law the rating decision of July 1992 became final based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a). By April 1998, the Veteran filed an application to reopen the claim of service connection for a mental condition, which was denied by the RO in November 1998, because the evidence was not new and material. The Veteran disagreed and perfected his appeal, which is now before the Board. Additional Evidence and Analysis The additional evidence presented since the last final rating decision in July 1992 consists of the following: a lay statement dated in April 1999 from a fellow Marine (S.M.) in which the affiant reported he had witnessed the Veteran being slammed into a barrack wall by a drill instructor, Veteran's lay statements describing an event during which he was struck by a drill instructor during basic training at Parris Island, the Veteran's testimony before the Decision Review Officer in March 2000, private treatment reports dated from 1977 to 1989 from Emmett Memorial Hospital and Dr. Claterbaugh, VA treatment reports from 1998 to 2008, a private 2009 statement from Dr. McCrimmon, and the Social Security disability application determination (dated January 2009) and underlying medical evidence. In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim, that is, the lack of evidence that a psychiatric disorder was incurred in or aggravate by service. The April 1999 lay statement by the fellow Marine and the Veteran's March 2000 testimony before the Decision Review officer, reporting an incident in service and the Veteran's experiencing symptoms after that incident in service and post-service, is evidence that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. To the extent the evidence is new and material under 38 C.F.R. § 3.156, the claim of service connection for a psychiatric disorder is reopened. The appeal is granted to this extent, only. ORDER As new and material evidence has been presented, the claim of service connection for a psychiatric disorder is reopened. REMAND The Veteran seeks service connection for a psychiatric disorder other than posttraumatic stress disorder. As the claim is reopened and as the evidence of record is insufficient to decide the claim, further development under the duty to assist is needed. On the claim of service connection for posttraumatic stress disorder based on a personal assault, proper VCAA notice is required. Accordingly, the case is REMANDED for the following action: 1. Ensure compliance with VCAA notice on the claim of service connection for posttraumatic stress disorder due to personal assault. 2. Afford the Veteran a VA psychiatric examination, including psychological testing for posttraumatic stress disorder, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that any current psychiatric disorder, including posttraumatic stress disorder, is related to service. In formulating the opinion, the VA examiner is asked to address the clinical significance of the Veteran's in-patient VA treatment from April 1979 to May 1979, during a period of active duty, in which the assessment was acute transient situational disturbance and whether any current psychiatric disorder is a progression of the in-patient symptoms or the development of new and separate condition? If, however, after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify that the opinion cannot be rendered because there are other potential causes unrelated to the events in service, please identify the other potential causes, when the in-service events are not more likely than any other etiology to cause any current psychiatric disorder and that an opinion is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be provided to the VA examiner for review. 3. After the development has been completed, adjudicate the claim of service connection for a psychiatric disorder, including a claim for posttraumatic stress disorder due to personal assault. If any benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs