Citation Nr: 1312290	
Decision Date: 04/15/13    Archive Date: 05/02/13	

DOCKET NO.  08-37 106A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, variously classified.

2.  Entitlement to service connection for hepatitis C.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The Veteran had active service from January 1969 to August 1970.  His awards and medals include the Combat Action Ribbon.  

The issue pertaining to service connection for hepatitis C will be addressed in a Remand following the Order section of the decision below.

Please note this appeal has been advanced on the Board's docket pursuant to the provisions of 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  By rating decision dated in January 2005, service connection for PTSD was denied.  The Veteran was notified of the denial action by communication dated the following month.  A timely appeal did not ensue.  

2.  Evidence received since the January 2005 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder, to include PTSD.  Such evidence is not cumulative or redundant of evidence already of record.  


CONCLUSION OF LAW

New and material evidence has been presented to reopen a claim for entitlement to service connection for a psychiatric disorder, to include PTSD.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, the Board notes that the Veteran has been provided all required notice under the governing regulations.  In addition, the evidence of record is sufficient to substantiate the claim to reopen herein decided.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

Pertinent Legal Criteria

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  The 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  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). 

The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase "raises a reasonable possibility of substantiating a claim" as "enabling rather than precluding opening."  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).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996).  The Board notes that the newly presented evidence need not be probative of all the elements required to award the claim, but only need be probative in regard to each element that was a specified basis for the last disallowance.  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making it.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).

Factual Background and Analysis

The RO initially denied service connection for PTSD by rating decision dated in January 2005.  The Veteran was notified of the denial by a letter dated the following month.  He did not timely appeal the denial action and no pertinent evidence was received within the appeal period.  As a result, the January 2005 decision is final.  

The basis for the denial action was that the service treatment records do not show complaints of, treatment for, or a diagnosis of any psychiatric disorder during his active service.  It was also noted that the Veteran was asked to provide information with regard to stressful experiences sustained while on active service.  He did not do so.  It was determined that while the evidence had shown a possibility of the presence of PTSD, the evidence did not show a confirmed diagnosis of PTSD.  

The evidence of record since the time of that rating action includes VA and private medical records.  Those records show diagnoses that include PTSD.  The Veteran has also provided information with regard to his combat experiences in Vietnam.  The Board finds that the aforementioned evidence is credible for purposes of reopening the claim.  Accordingly, this aforementioned evidence is sufficient to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder, namely PTSD.  


ORDER

The Board having determined that new and material evidence has been received, reopening of the claim for entitlement to service connection for a psychiatric disorder, to include PTSD, is granted.


REMAND

The record as it stands is inadequate for the purpose of rendering a fully informed decision as to the claims that have been certified for the Board's review at this time.  When the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist the Veteran in developing facts pertinent to the claims.  Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).  

A review of the record reveals that VA has attempted on several occasions to schedule the Veteran for a comprehensive psychiatric examination.  However, for various reasons, some including the Veteran being homeless at times, the Veteran failed to report for the examinations.  However, a recent communication associated with the Virtual VA folder reflects that as of September 2012, the Veteran had a mailing address at the Salvation Army Bell Shelter, 5600 Rickenbacker, RD 1-E, Bell, California, Zip Code 90201.  

The record reflects that the Veteran has never been accorded an examination for evaluation of his hepatitis C.  Also, as noted above, he has not been accorded an examination with regard to the PTSD, although that is not VA's fault.  

However, VA believes that with the Veteran having an address at the present time, and due to the nature of the Veteran's service, one more attempt should be made to give him the opportunity to appear for an examination and the case is REMANDED for the following actions:

1.  The RO/AMC should ask the Veteran to identify the names, addresses, and approximate dates for all VA and non-VA health-care providers who provided treatment or evaluation for the disabilities at issue.  The RO/AMC must include the authorization and release forms to allow for the procurement of any records identified.  Any records indicated should be obtained and associated with the claims file.  All attempts to obtain such records should be documented in the claims file.  

2.  The Veteran should be accorded an examination by a physician with knowledge in psychiatry for the purpose of determining the nature and etiology of any acquired psychiatric disorder, to include PTSD, and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current psychiatric disorder, to include PTSD, had its onset in service or is otherwise related to a disease or injury in service.  The claims folder must be made available to and reviewed by the examiner, and any indicated studies, to include psychological testing, should be performed.  The examiner is advised that the Veteran's reports must be taken into account along with the other evidence of record, in formulating the requested opinion.  

3.  The Veteran should also be accorded an examination by a physician with the proper expertise for the purpose of determining the nature and etiology of any hepatitis now present.  The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed.  The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account along with the other evidence of record, in formulating the requested opinion.  The examiner should opine as to whether any evidence present is attributable to the Veteran's long history of polysubstance abuse and whether it is more likely than not that the polysubstance abuse is part and parcel of the Veteran's self-medication for any psychiatric disorder currently identified, to include PTSD.  If the examiner cannot provide an opinion without resort to speculation, he or she should provide a reason why this is so, and must state whether there is additional evidence that would permit an opinion to be rendered.  

4.  Thereafter, the AMC/RO should consider all the evidence of record and readjudicate the claims with regard to psychiatric disability and hepatitis with consideration of all theories of service connection.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be given an opportunity for response.  

By this REMAND, the Board intimates no opinion as to any final outcome warranted.  

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. 2011).

 
	                     ______________________________________________
	KELLI KORDICH
	Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs