Citation Nr: 1313804	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  10-47 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability.

2.  Entitlement to service connection for a psychiatric disability. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Cryan, Counsel




INTRODUCTION

The Veteran served on active duty from February 1992 to January 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Veteran requested a hearing before the Board when he submitted his substantive appeal in November 2010.  In a September 2011 correspondence, the Veteran indicated that he wanted to withdraw his request for a hearing.  Consequently, the Veteran's request for a hearing is withdrawn.  38 C.F.R. § 20.704(e) (2012).  

The claim of entitlement to service connection for a psychiatric disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDINGS OF FACT

1.  Service connection for a personality disorder was denied by a January 2004 rating decision.  The Veteran was notified of that decision in January 2004, but did not appeal the denial.

2.  The evidence received since the prior rating decision is new and raises a reasonable possibility of substantiating the underlying claim of service connection for a psychiatric disability. 


CONCLUSION OF LAW

New and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for a psychiatric disability has been received.  38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran originally submitted a claim of entitlement to service connection for a mental disorder in August 2003.  The claim was denied by the RO in January 2004.  Notice of the denial and notice of appellate rights were provided in January 2004.  The Veteran did not initiate an appeal and the RO decision became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).  Therefore, service connection for a personality disorder may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996).

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no new and material evidence has been offered, that is where the analysis must end.  Butler v. Brown, 9 Vet. App. 167 (1996).

Evidence is considered new if it was not of record at the time of the last final disallowance of the claim.  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.  Finally, 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) (2012).

In determining whether evidence is new and material, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  New and material evidence is not required as to each previously unproven element of a claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

The evidence before VA at the time of the prior final denial consisted of the Veteran's service medical records.  The Veteran's service medical records did not show any complaints, findings, or treatment for any psychiatric disorder.  

The RO denied the claim in a January 2004 rating decision.  The basis of the denial of the claim was that there was no evidence of any treatment for any psychiatric disorder in service and a personality disorder was considered a congenital or developmental defect which was unrelated to service and not subject to service connection.

The Veteran submitted a claim to reopen his claim for service connection for a psychiatric disability in November 2009.  Evidence associated with the claims file since the final prior denial consists of private treatment reports from the Texas Department of Corrections and John Peter Smith Hospital and statements from the Veteran.

Because the evidence received since the prior denial was not previously of record, it is new evidence.  Because it addresses specifically the issue before the Board, the Board finds that the new evidence is material.  38 C.F.R. § 3.156 (2012).  Since the final prior denial, the Veteran has submitted evidence of treatment for a mood disorder, alcohol dependence, and major depressive disorder which was not shown at the time of the previous denial.  The Veteran has also submitted statements indicating that his psychiatric disorder began in service and has continued since that time.  The Veteran is competent as a lay person to provide testimony regarding continuity of symptoms.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (where a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is medical in nature and is capable of lay observation).  Additionally, the evidence shows treatment for and diagnoses related to psychiatric disabilities.  Consequently, the Board concludes that the evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim.

Accordingly, the claim for service connection for a personality disorder is reopened.  To that extent only, the claim is allowed.  The claim for service connection for a psychiatric disability will be remanded for additional development.


ORDER

The claim of entitlement to service connection for a psychiatric disability is reopened.  To that extent only, the appeal is granted.


REMAND

A review of the claims file show that a remand is necessary before a decision on the merits of the underlying claim of service connection for a personality disorder can be reached.  

In initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  38 C.F.R. § 3.159(c) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The evidence of record indicates that the Veteran sought treatment for psychiatric complaints since service and has been diagnosed with several psychiatric disorders since service.  The Veteran has also alleged a continuity of symptomatology for his psychiatric symptoms since service.  

Accordingly, the case is REMANDED for the following action:



1.  Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder.  The claims folder must be available for review by the examiner.  Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA electronic file or as paper copies.  The examiner is requested to identify any currently diagnosed psychiatric disorders and to state whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disability is related to the Veteran's active duty service or events therein.  In making the determination, the examiner is requested to discuss whether the Veteran has a currently diagnosed personality disorder and address whether there is any evidence of a superimposed psychiatric disorder.  A complete rationale for any opinion expressed should be provided.  

2.  Then, readjudicate the issue on appeal.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

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 or the United States Court of Appeals for Veterans 


Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs