Citation Nr: 1305879 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 08-18 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been presented to reopen a service connection claim for an acquired psychiatric disorder, diagnosed as mood disorder and depression, to include as secondary to bilateral foot disability, and if so, whether service connection may be granted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that reopened a previously-denied claim for service connection for depression and denied the claim on its merits. The Veteran testified before a Decision Review Officer in a hearing in October 2008. In November 2011 the Board reopened the claim and denied service connection for depression on the merits. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which granted the parties' joint motion for remand (JMR) in an October 2012 order, vacating in the Board's decision and remanding the matter for the Board to address particular evidence it may have overlooked. FINDINGS OF FACT 1. In a rating decision issued in April 2002, the RO denied service connection for depression. Following receipt of notification of this determination, the Veteran did not timely perfect an appeal, and the decision became final. 2. Evidence received since the April 2002 RO decision relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder and is not cumulative or redundant of evidence already of record. 3. The Veteran is service-connected for residuals of cold injury to both feet and for related hypesthesia of both feet. 4. Resolving all doubt in favor of the Veteran, the evidence shows that a currently diagnosed acquired psychiatric disorder, a mood disorder and depression, has been medically linked to a service-connected disability. CONCLUSIONS OF LAW 1. The April 2002 RO rating decision that denied service connection for depression is final. 38 U.S.C.A. §§ 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected bilateral foot disabilities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for an acquired psychiatric disorder, diagnosed as mood disorder and depression, have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen and grant service connection for an acquired psychiatric disorder herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. I. Reopening the claim Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The Veteran has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). In this case, the Veteran did not file an NOD with the April 2002 rating decision that initially denied his depression claim and no additional evidence pertinent to the issue was physically or constructively associated with the claims file within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 2002 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). Where, as here, a claim of entitlement to service connection has been previously denied and that decision has become 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). Moreover, where, as here, the prior final decision was an unappealed RO rating decision, the United States Court of Appeals for the Federal Circuit has held that "the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, the Board must now consider whether new and material evidence has been submitted to reopen the previously denied claim. In making this determination, the Board must review all of the evidence submitted since the last final rating decision. New evidence means existing evidence not previously submitted to agency decision makers. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court 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, supra; see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim; rather it need only be probative in regard to each element that was a specified basis for the last disallowance). Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). The prior evidence considered in the final April 2002 denial consisted of the Veteran's service treatment records, private treatment records dated prior to April 2002, and the Veteran's lay statements. The basis of the final denial was the absence of evidence of a current disability. Since the April 2002 rating decision, new evidence added to the record consists of VA and private treatment records dated after April 2002, a July 2007 VA examination report, statements from the Veteran, and hearing testimony. This evidence includes VA psychiatric treatment notes showing clinical impressions and diagnoses of depression and mood disorder. The absence of evidence of a current disability was the element of service connection upon which the prior denial was based. Accordingly, this evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim. It is therefore material and sufficient to reopen the previously-denied claim. Shade, 24 Vet. App. 110. The Board reopens the Veteran's claim of entitlement to secondary service connection for an acquired psychiatric disorder for a de novo review on the merits. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The Board notes that the RO reopened the Veteran's claim in the September 2007 rating decision, May 2008 statement of the case, and January 2009 supplemental statement of the case and denied it on the merits. The Board herein grants the Veteran's claim. Therefore, he is not prejudiced by the Board's actions herein. See Bernard, supra. Finally, the Board observes that the same April 2002 rating decision denied service connection for reflex sympathetic dystrophy (RSD). The Veteran did not file a notice of disagreement with the decision, and no additional evidence pertinent to the issue was physically or constructively associated with the claims file within one year of the rating decision; therefore, that denial became final. 38 C.F.R. §§ 3.156(b), 7104, 7105; 38 C.F.R. § 20.1105 (2012); Bond, supra; Buie, supra. The Veteran has not filed a request to reopen the claim for service connection for RSD and that issue is not before the Board. II. Service Connection The Veteran contends that his claimed acquired psychiatric disorder, diagnosed as mood disorder and depression, is secondary to his service connected residuals of cold injury to both feet and related hypesthesia of both feet. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder, or for an increase in disability caused by a service-connected disorder. 38 C.F.R. § 3.310(a). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence of record, which includes VA medical records, private treatment records, a VA examination report, and lay evidence, establishes that the Veteran has a current psychiatric disability. Specifically, during the appeal period he has been diagnosed with mood disorder and depression. VA treatment records show the Veteran was referred for a psychiatry consult in November 2003 for depressive symptoms. The VA psychiatrist who performed that consult in March 2004 assigned him an Axis I diagnosis of Reactive Depression. That psychiatrist went on to treat the Veteran regularly, seeing him every three to four months, through at least August 2009. During the course of treatment, the Veteran's psychiatric diagnosis was alternately listed as reactive depression, depression, and mood disorder. The Board further notes that the Veteran is currently service-connected for residuals of cold injury to both feet and related hypesthesia of both feet. Therefore, the remaining inquiry is whether such service-connected disabilities caused or aggravated the Veteran's acquired psychiatric disorder. The first record of psychiatric treatment is the initial VA psychiatric consult in March 2004. At that consult, the VA psychiatrist noted a history of "chronic pain secondary to RSD and frostbite of feet during his military years." That psychiatrist assigned him an Axis I diagnosis of Reactive Depression. The same psychiatrist treated the Veteran regularly from March 2004 through at least August 2009. Throughout the VA treatment records, the Veteran's depression or mood disorder is consistently described as being due to chronic pain. The chronic pain is sometimes unspecified, and sometimes specifically attributed to RSD, frostbite, or both RSD and frostbite. In the most recent relevant medical record in the claims file, dated April 2009, that psychiatrist stated that the Veteran was being followed and treated for "a mood disorder due to chronic pain resulting from frostbite injuries incurred in the military." The evidence indicates that the Veteran's RSD resulted from a crush injury to his right hand that occurred in 1997, well after service. The Veteran had a VA neurological consult in January 2005 in which the neurologist noted history of a crush injury to the right arm with subsequent related surgery in 1998. The Veteran reported that since the 1998 surgery he experienced pain on the entire right side of the body, including the feet. He also reported severe cramping and burning of the feet, which he attributed to the service-connected frostbite injury. The neurologist was unable to perform a clinical examination because the Veteran complained of pain before even being touched. The clinical impression was status post sympathetic lesion with resultant pain syndrome on the right body and also frostbite injury to the lower extremities with burning pain. The Veteran had a VA-contracted examination of the feet in November 2006, in which the examiner noted the presence of nonservice-connected RSD of the right hand but also noted complaints related to both feet. The examiner diagnosed bilateral lower extremity spastic clonus, which the examiner noted to be of undetermined etiology and also diagnosed mild bilateral residual cold injuries. The Veteran was examined by a VA psychologist in July 2007. The examiner stated that she reviewed the claims file and medical treatment records. The Veteran endorsed current complaints of sweating, pain and cramping on the entire body, swelling of the feet, restlessness, and hearing voices. Following examination, she made an Axis I diagnosis of "pain disorder associated with both psychological factors and a general medical condition." She noted that the Veteran had a history of being treated with an anti-depressant but did not discuss the treating VA psychiatrist's diagnoses. The examiner opined that depression is not caused by or a result of residuals of cold injury to both feet. Her rationale was that "the Veteran has a pain syndrome and his reports of pain are widespread covering his whole body with some psychosis reported as well. There is no objective data in the claims file to link his present mental health status (depression) to his complaints of cold injury residuals." The Board finds that this rationale is inadequate. The examiner's opinion describes the Veteran's present mental health status as depression, but she did not diagnose depression. She did not elaborate on what the "general medical condition" might be in her diagnosis, and when she had opportunities to discuss the Veteran's non-psychiatric injuries, hospitalizations, or Axis III factors, she stated only "see medical records." She listed Axis IV factors of chronic pain and limited mobility but did not explain why these would not be related to the Veteran's service-connected residuals of cold injury to his feet, especially in light of the 2005 neurological VA examination that distinguished frostbite-related foot pain from RSD-related pain. Her statement that the claims file contains no objective data linking depression to cold injury residuals is inaccurate and appears to ignore the March 2004 statement by the VA psychiatrist describing "chronic pain secondary to RSD and frostbite of feet during his military years." The Board finds that the opinion does not contain clear conclusions supported by specific data in the record, or a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, a medical opinion based on an inaccurate or incomplete factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The 2007 VA medical opinion was not predicated upon a thorough, accurate review of the record and is not supported by a sufficient rationale; therefore it is not probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In contrast, the VA psychiatrist's April 2009 statement that the Veteran was being followed for "a mood disorder due to chronic pain resulting from frostbite injuries incurred in the military" is based on the most recent evidence of record, as well as years of treating the Veteran. Therefore, it is based on accurate and complete factual premises. The favorable statements made by the VA psychiatrist regarding the relationship between the Veteran's service-connected disability and acquired psychiatric disorder are also consistent with the Veteran's lay testimony. Specifically, in lay statements and hearing testimony the Veteran asserted that his depression was due to the pain, limited mobility, inability to wear normal shoes, and sweating caused by his residuals of cold injury. At his hearing, the Veteran asserted his depression first set in after being frostbitten and that he had been "messed up" (by which it is understood he meant he was depressed) since his separation from service. (In this regard, the Veteran's service treatment records show he reported a history of symptoms including depression or excessive worry, nervous trouble, and frequent trouble sleeping shortly before he separated from service.) The Board finds the VA psychiatrist's nexus statements are probative. The Board concludes that the evidence supports service connection. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). A current disability has been shown to exist, and the probative medical evidence of record supports the conclusion that the acquired psychiatric disorder was proximately caused by the Veteran's service-connected bilateral foot disability. Therefore, resolving reasonable doubt in favor of the Veteran, service connection for such disability on a secondary basis is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as secondary to service-connected bilateral foot disability, is granted. Service connection for an acquired psychiatric disorder, diagnosed as mood disorder and depression, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs