Citation Nr: 1310434 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 11-20 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder to include PTSD. REPRESENTATION Jill Willingham-Allen WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The appellant who is a veteran served on active duty from January 1987 to July 1989. This appeal to the Board of Veterans' Appeals (Board) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In support of his claim, the Veteran testified at a RO hearing in April 2011, and at another February 2013 hearing at the Central Office in Washington, D.C., before the undersigned Veterans Law Judge of the Board. The RO determined that new and material evidence had not been received since a prior, final and binding, Board March 2007 decision and therefore denied the Veteran's petition to reopen his claim for service connection for a psychiatric disorder. The Board must make its own threshold preliminary determination, however, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate this claim on its underlying merits. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. In this case the Board finds that new and material evidence has been submitted, and the claim is remand the claim to the RO via Appeals Management Center (AMC) for further development before readjudicating the claim on its underlying merits. In October 2011, the RO received the Veteran's revocation of his representation by the Texas Veterans Commission. In February 2013, the appellant executed a VA Form 21-22a, naming his niece, Jill Willingham-Allen, as a representive under 38 C.F.R. § 14.630. It was specifically indicated that the Veteran's niece would not be accepting compensation for her assistance. In a statement received in February 2013, the Veteran raised arguments regarding pension benefits. However, the RO has not had a chance to address this claim. And as the Agency of Original Jurisdiction (AOJ), the RO must consider this claim in the first instance. Therefore, the Board does not have jurisdiction over this claim and is referring it to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. In a March 2007 decision the Board determined that the Veteran did not have PTSD and did have any other acquired psychiatric disorder as a result of military service. 2. Since that March 2007 Board decision, however, there is additional medical statements indicating that the Veteran has PTSD that is related to military service. 3. Presuming its credibility, the additional evidence has not been previously considered, is not cumulative or redundant of evidence already on file, relates to an unestablished fact necessary to substantiate this claim for a psychiatric disorder, to include PTSD, and raises a reasonable possibility of substantiating this claim. CONCLUSION OF LAW The Board's March 2007 decision denying the Veteran's claim for service connection for a psychiatric disorder to include PTSD is final; however, new and material evidence since has been submitted to reopen this claim. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, however, the Board is reopening this claim for chronic acquired psychiatric disorders on the basis of new and material evidence. So there is no need to discuss whether there has been sufficient VCAA notice to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), including insofar as apprising the Veteran of the specific reasons this claim was previously denied so he would have the opportunity to respond by providing evidence that would overcome these prior deficiencies. See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). This claim is being reopened, regardless. So even were the Board to assume for the sake of argument that he did not receive the type of notice contemplated by Kent, this failure still ultimately would be inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, the Veteran, not VA, has this evidentiary burden of proof of explaining why a VCAA notice error in timing or content is unduly prejudicial, meaning outcome determinative of the claim). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112(a) , 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307 , 3.309. Delusional disorder is considered a psychosis for VA purposes. 38 C.F.R. § 3.384. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) ; a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). A personality disorder is not eligible for service connection as it is not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c) , 4.9. However, such condition may be service-connected if it is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). Congenital or developmental "defects" such as a personality disorder and mental deficiency automatically rebut the presumption of soundness and therefore are considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. The RO, first considered and denied the Veteran's claim for service connection for a passive/aggressive disorder, in a January 2003 rating decision. The Veteran eventually appealed to the Board. In a March 2007 decision, the Board expanded the claim to include all diagnosed psychiatric disorders and PTSD. The Board found that the Veteran did not have PTSD and he did have any other acquired psychiatric disorder as a result of military service. The Veteran did not appeal that Board decision. When a rating decision issued by the RO denying a claim is affirmed by the Board on appeal, the Board's decision subsumes the RO's denial. See 38 C.F.R. § 20.1104. And since the Veteran did not appeal the Board's March 2007 denial of his claim, that prior decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In March 2009, the Veteran filed a petition to reopen his claim for service connection for a psychiatric disorder. This claim may be reopened upon receipt of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" 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 cannot be cumulative or 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. See 38 C.F.R. § 3.156(a). Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold for reopening and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court also held that the regulation does not require the submission of new and material evidence as to each previously unproven element of a claim for a claim to be reopened. That is, it is impermissible to require the evidence in question to be new, material, and raise a reasonable possibility of substantiating the claim because this phrase does not create a third element for new and material evidence but, instead, was intended to provide guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements. See Shade, 24 Vet. App. at 116. See also Hodge, 155 F.3d at 1363 (indicating new evidence may be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). The additional evidence submitted since the Board's March 2007 decision includes several written statements and the Veteran's oral hearing testimony, under oath, as well as additional medical records and statements from medical professionals. Most significantly, though, he submitted letters dated in April and August 2011 from Dr. D.L. L., a licensed social worker that diagnosed PTSD and related this disorder to his military service. These statements are material in that they raise the possibility that the Veteran's currently diagnosed psychiatric disorders are related to military service. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As such, the Veteran's claim of entitlement to service connection for a psychiatric disorder is reopened. ORDER Having submitted new and material evidence, the Veteran's claim of entitlement to service connection for a psychiatric to include PTSD is reopened; to this extent only this appeal is granted, subject to the further development of this claim on remand. REMAND Additional development actions are necessary before the Board may review the appeal on the merits. In statements received in February 2012, the Veteran and his representative reported that he has been receiving psychiatric treatment at VA facility in Waco, Texas. In an August 2011 medical statement, the Veteran's private psychologist reported that the Veteran was receiving medical care at the Dallas, Texas, VA medical facility. The clinical documentation associated with this medical care has not been incorporated into the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). At his 2013 hearing, he also reported that he is receiving private psychiatric care from Dr. D.L.L. This Veteran has submitted documents associated with his Social Security Administration (SSA) benefits. While it appears that the claims file contains some of his SSA records, it is not clear if all relevant medical records are on file. They must be obtained before deciding this claim since these records specifically concern the particular condition at issue. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). During active duty, the Veteran complained of stress and had disciplinary problems. Ultimately, he was separated from service due to a personality disorder. As for the post-service medical evidence, it consists of VA records, which reflect diagnoses including depressive disorder NOS (not otherwise specified), PTSD (sometimes characterized as "rule out" PTSD), paranoid personality disorder, and delusional disorder, persecutory type. In a statement from a VA physician, A.P.F., M.D., dated in October 2004, Dr. F. stated that he examined the Veteran and obtained his complete psychiatric history. He stated that the Veteran had a depressive disorder NOS, as well as PTSD, and both were related to his service. A VA examination report, dated in July 2005, shows that the Veteran's Axis I diagnoses were depressive disorder NOS, and alcohol dependence in recent remission. The Axis II diagnosis was paranoid personality disorder. The examiner stated, "I do not find a history of any life-threatening stressors that would produce PTSD." In an addendum, dated in November 2005, the examiner stated that he had reviewed the Veteran's claims file, and that the Veteran's "situational stress" during service was due to an underlying personality disorder. He indicated that the Veteran's personality disorder did not contribute to, and was not consistent with, a diagnosis of PTSD. He stated that the Veteran did not meet the DSM-IV criteria for PTSD. An opinion from a VA psychologist, dated in July 2006, reflects that the Veteran does not have a service connected mental disorder. It was opined that " . . . his disagreement [and] unhappiness at being reprimanded by superiors does not constitute a mental illness." As noted above, a private licensed social worker, Dr. D.L. L., in April and August 2011, diagnosed PTSD and related this disorder to his military service. In sum, there is insufficient and conflicting medical evidence on file to decide the claim. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). The diagnoses are varied and the etiology of the diagnosed disorders is unclear. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AMC/RO should take all indicated action to secure from the SSA copies of all records associated with the Veteran's disability claim(s). If no records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 2. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA that treated the Veteran for his psychiatric disabilities. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. These records should include those from the VA medical facilities in Waco and Dallas, Texas (since 2010), as well as the private medical records of Dr. D.L.L. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Thereafter, make arrangements with the appropriate VA Medical Center to afford the Veteran an examination by a psychiatrist, if possible, to identify and, if possible, reconcile all psychiatric diagnoses to date. All indicated tests and studies should be performed. Request the examiner to obtain a detailed clinical history. Following the examination, the examiner should render an opinion as to whether it is as likely as not that any psychiatric disorder originated during the Veteran's period of active duty or whether any psychosis manifested within one year after such service? The examiner should also address whether the Veteran has a personality disorder that was subject to, or aggravated by, a superimposed injury or disease in service that resulted in additional disability. If PTSD is diagnosed, the examiner should identify the specific stressor(s) upon which the diagnosis is based. If PTSD is not diagnosed, the examiner should explain why the veteran does not meet the criteria for this diagnosis 4. The AMC/RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing all indicated development to the extent possible, the AMC/RO should readjudicate the claim on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the AMC/RO should furnish a fully responsive supplemental statement of the case (SSOC) to the Veteran and representative and they should afforded a reasonable opportunity for response. The Veteran 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. 2012). _________________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).