Citation Nr: 1302123 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 11-07 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for posttraumatic stress disorder (PTSD) has been received. 2. Whether new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder, to include depressive disorder not otherwise specified (NOS), major depression, bipolar disorder, schizoaffective disorder and paranoid schizophrenia (to include as secondary to personal trauma) has been received. 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD (to include as secondary to personal trauma). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1985 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In the May 2010 rating decision, the RO continued the denial of service connection for depressive disorder NOS, major depression, bipolar disorder, schizoaffective disorder and paranoid schizophrenia (to include as secondary to personal trauma). The Board notes that the RO has considered the claim on the merits; however, regardless of what the RO has done, the Board must address the question of whether new and material evidence to reopen the claims for service connection has been received because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board also notes that the U.S. Court of Appeals for Veterans Claims (Court) has held that a claimant is generally not competent to diagnose his own psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). Here, although the Veteran has claimed entitlement to service connection for depressive disorder NOS, major depression, bipolar disorder, schizoaffective disorder and paranoid schizophrenia, the Board must also consider any other psychiatric disorders that have been diagnosed. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The issue of service connection for an acquired psychiatric disorder other than PTSD (to include as secondary to personal trauma) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a March 1998 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran did not appeal this decision. 2. Evidence received since the March 1998 rating decision denying service connection for PTSD is cumulative. 3. In a February 1995 rating decision, the RO denied entitlement to service connection for psychiatric disorders. The Veteran did not appeal this decision. 4. Evidence received since the February 1995 rating decision relates to the basis for the prior denial. CONCLUSIONS OF LAW 1. The March 1998 RO decision that denied entitlement to service connection for PTSD is final. 38 U.S.C.A. §§ 7103(a), 7105 (West 2002); 38 C.F.R § 20.1100(a) (2012). 2. Evidence received since the March 1998 RO decision is not new and material and reopening of the claim of service connection for PTSD is therefore not warranted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The February 1995 RO decision that denied entitlement to service connection for psychiatric disorders variously classified is final. 38 U.S.C.A. §§ 7103(a), 7105 (West 2002); 38 C.F.R § 20.1100(a) (2012). 4. Evidence received since the February 1995 RO decision with regard to psychiatric disorders is new and material and reopening of the claim of service connection for an acquired psychiatric disorder is therefore warranted. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice is commonly referred to VCCA notice as it came out of legislation titled the Veterans Claims Assistance Act of 2000 (VCAA). (Codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO sent the Veteran letters dated in November 2009 and January 2010 that complied with statutory notice requirements. Therein, the RO notified the Veteran of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. The letters also notified the Veteran of the criteria for reopening a previously denied claims, the criteria for establishing service connection, and information concerning why the claims were previously denied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). For a claim to reopen a finally adjudicated claim, VA will provide a medical examination or obtain an opinion only if new and material evidence is presented or secured. Id. Finally in this regard, during the Board hearing, the undersigned Veterans Law Judge asked questions indicating that it was incumbent upon the Veteran to submit any potentially relevant evidence in her possession in support of her claims. This action supplemented VA's compliance with the VCAA and, to the extent that 38 C.F.R. § 3.103 was applicable to Board hearings in October 2011, complied with this regulation. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 76 Fed. Reg. 52572 (Aug. 23, 2011) (clarifying that 38 C.F.R. § 3.103 does not apply to Board hearings). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims are thus ready to be considered. Governing Laws and Regulations Reopening a Previously Denied Claim Generally, a claim which has been denied in a final unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105. An 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 which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether there is new and material evidence is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Analysis PTSD The last final denial on the claim for service connection for PTSD was the March 1998 RO rating decision. At the time of the decision, the evidence of record included the Veteran's service treatment records and military personnel records, which did not show that PTSD was diagnosed during service; and post-service VA and private treatment records, to include a December 1993 VA compensation and pension examination, which showed that the Veteran had been diagnosed with various psychiatric conditions, but not PTSD. In her September 1997 claim for PTSD, the Veteran indicated that she based her claim on the following in-service events: hand grenades were thrown at gate guards, but she was still stationed for guard duty in Germany, she and an American soldier almost ended up in Russia, but she did not (although he was said to have), and she was subject to physical abuse by her husband while she was in the military. The Veteran also submitted a stressor statement in December 1997 as evidence of in-service stressors. The stressful in-service events that she believed contributed to the development of PTSD consisted of others in her platoon physically harassing, kicking, pinching, and threatening her. She also stated that she was ignored when she tried to report the incidents. She did not submit a stressor statement for any of the events described on her September 1997 claim. In its March 1998 rating decision, the RO denied service connection for PTSD primarily because there was an absence of medical evidence establishing a clear diagnosis of PTSD, thus failing to amount to a well-grounded service connection claim. A review of the evidence also could not verify any of the stressors related by the Veteran. As a result, the record lacked supporting evidence of a link between the claimed current symptomatology and the claimed in-service stressors. The relevant evidence received since the March 1998 decision includes post-service VA and private treatment records which show diagnoses of other psychiatric conditions, none of which is PTSD. The Veteran also submitted a statement in support of a claim for PSTD secondary to personal assault (VA Form 21-0781a) in November 2009, where she noted that she was attacked while walking to the club. She also mentioned that she was forced to find her own way home after she was verbally harassed by a fellow serviceperson. Finally, she notes that she was physically attacked by her sister-in-law. The Veteran also submitted an accompanying personal statement in November 2009, where she noted that she was in an abusive relationship with her husband and was harassed in service in other ways, including having her promotions blocked, being physically threatened, receiving extra duty, and being ordered to run ten miles while pregnant, which resulted in complications. Finally, the Veteran testified at a October 2011 Board hearing that she was sexually assaulted by a fellow serviceperson in the military, but she did not report the incident in service due to fear of repercussions. However, the overriding basis for the prior denial was the absence of an acceptable diagnosis of PTSD and evidence linking PTSD to service. To the extent that she has elaborated on purported stressors, such lay evidence is cumulative of her prior report that she had numerous in-service stressors. None of the additional evidence provides a diagnosis of PTSD nor does the evidence of record verify or corroborate the occurrence of the claimed in-service stressors. Thus, there cannot be a nexus to warrant a suggestion of service connection. In this case, the application to reopen the previously denied claim for PTSD must be denied because none of the new evidence relates to a basis for prior denial. None of the added evidence is new and material. To the extent the evidence shows continued treatment for other psychiatric disorders besides PTSD, this evidence is duplicative and irrelevant as the record would need to show an actual PTSD diagnosis. As none of the new evidence relates to any basis for the prior denial of service connection for PTSD, the application to reopen the claim must be denied. Although the threshold to reopen is low, such threshold is not met in this case. See Shade, 24 Vet. App. at 118. Acquired Psychiatric Disorder As outlined above, the last final denial of the claim for service connection for an acquired psychiatric disorder was the February 1995 RO rating decision. The evidence of record at the time of that decision included the Veteran's service treatment records and military personnel records; which did not show that any psychiatric disorder was diagnosed during service. The Veteran's April 1989 Statement of Counseling upon separation indicated that the Veteran elected separation from the military as a result of pregnancy. Post-service VA and private treatment records, to include the December 1993 VA examination, showed that the Veteran had been diagnosed with the following: various depressive disorders, major depression, schizoaffective disorder (manifest by paranoia and affective symptoms), paranoid schizophrenia, and bipolar disorder. In its February 1995 rating decision, the RO denied service connection for psychiatric disorders because none of the various psychiatric diagnoses have been found to have manifest in service. Nor does the evidence of record establish that any type of psychosis was manifested to a compensable degree, within one year of the Veteran's discharge from service. Furthermore, the RO found that despite finding the Veteran credible in her recollections of having experienced stress and a nervous condition in service, the clinical record does not link the onset of psychiatric symptoms with any disability or other incident of the Veteran's active duty service. Thus, the RO did not find that there was a continuity of a chronic psychiatric disability since service. The evidence received since the February 1995 decision includes VA and private treatment records which continue to confirm schizoaffective disorder, schizophrenia, and bipolar disorder with psychotic features. Some evidence submitted by the Veteran were duplicative of the evidence already on record at the time of the February 1995 decision. The Veteran also submitted personal statements in November 2009 which describe various incidents of personal trauma during service. Additionally, the October 2011 hearing transcript has been associated with the record, which contains testimony from the Veteran regarding her experience with sexually assault by a fellow serviceperson in the military and elaborated on how she has been affected since the claimed incident in 1985. The Board finds that the evidence added to the record since the February 1995 decision is new and material, namely the Veteran's personal statements submitted in November 2009 and the Veteran's hearing testimony. The Board finds that the evidence is material as it relates to an unestablished fact needed to substantiate the claim of service connection, which is evidence of an in-service occurrence or incident giving rise to the disability. The Veteran's personal statements alleging continuity of symptomatology and in-service trauma (e.g. sexual and physical assault) may go towards potentially curing an evidentiary defect in the record. Such personal statements describing specific instances of verbal harassment and physical and sexual assault were not submitted for consideration for the February 1995 decision. Moreover, such statements were not considered at the first VA examination in December 1993 and no medical examiner of record has taken into consideration the Veteran's statements as reported to VA for etiological purposes. As this new evidence bears directly on an element of the Veteran's claim previously found lacking, reopening the claim is warranted. ORDER The application to reopen the claim for service connection for PTSD is denied. The application to reopen the claim for service connection for an acquired psychiatric disorder other than PTSD (to include as secondary to personal trauma) is granted. REMAND The Veteran avers that her current psychiatric disorders are related or secondary to various in-service personal traumatic events which she described in her November 2009 statements and in her testimony at the October 2011 Board hearing. The RO, in its May 2010 rating decision which continued to deny service connection for depressive disorder NOS, major depression, bipolar disorder, schizoaffective disorder and paranoid schizophrenia (to include as secondary to personal trauma), incorrectly assumed that such allegations of traumatic events must be verified in a non-PTSD service connection case. The Veteran is competent to provide lay statements regarding her in-service psychiatric symptoms, which may include discussions of the onset or triggers of her symptoms, such as personal traumatic events in service. Thus, the Board must consider the Veteran's lay statements. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additional evidence has been added to the record since 1993 and should be considered when a new examination is ordered. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, a remand is required for a new VA examination. Finally, the RO should also obtain and associate with the claims file all relevant outstanding VA treatment records since 2007. The Veteran testified at the October 2011 Board hearing that she is currently being treated and she has been treated since within 6 months after separation from service in May 1989. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all outstanding VA records of evaluation and/or treatment for the Veteran's acquired psychiatric disorders, including any such records from 2007 to present day. 2. The RO/AMC should contact the Veteran and her representative and request that they submit any treatment records within 6 months from the Veteran's separation from service in May 1989. 3. After completing steps 1 and 2, schedule the Veteran for a VA examination by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. On examination, the examiner should report all psychiatric disabilities found to be present. After examining the Veteran and reviewing the claims file, to include lay statements submitted by the Veteran and the Veteran's testimony at the Board hearing, the examiner should respond to the following: Is it at least as likely as not (a 50 percent probability or greater) that any current psychiatric disorder(s) was/were manifested during or otherwise caused by the Veteran's active duty or any incident therein? If so, clearly identify such current psychiatric disorder(s). The examiner should specifically consider whether any of the reported in-service personal trauma is a contributing factor to any currently diagnosed psychiatric disorder(s). 4. Adjudicate the issue of service connection for any acquired psychiatric disorder(s). 5. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs