Citation Nr: 1315743	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  09-17 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression, and if so, whether service connection is warranted.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Lipstein



INTRODUCTION

The Veteran served on active duty from May 1974 to May 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), that denied claims for service connection for depression and hearing loss.  The Veteran filed a notice of disagreement and a statement of the case was issued in May 2009.  However, in his substantive appeal, the Veteran expressly limited his appeal to his depression claim.  Thus, the only issue on appeal is the claim for depression.  38 C.F.R. § 20.200.

The Board notes that in the decision on appeal, the RO reopened the claim for service connection for depression.  Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

The record reflects that the Veteran requested a hearing before a Veterans Law Judge, but in correspondence received in July 2012 from the Veteran's representative, he cancelled the hearing request.

For the reasons explained below, the appeal the issue of entitlement to service connection for depression on the merits is REMANDED to the RO via the Appeals Management Center (AMC).  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  The June 2004 rating decision that denied service connection for depression was not appealed and no additional relevant evidence was received within one year of the decision; thus, the decision s final.

2.  The evidence received since that June 2004 rating decision includes evidence that is neither cumulative nor redundant and contributes to a more complete picture of the origin of the Veteran's claimed disability. 


CONCLUSION OF LAW

New and material evidence has been received to reopen the claim of entitlement to service connection for depression.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).

Given the Board's favorable disposition to reopen the claim for service connection for depression, the Board finds that no discussion of VCAA compliance is necessary at this time.

Analysis

A June 2004 rating decision denied entitlement to service connection for depression.  A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).  The Veteran did not file a notice of disagreement with June 2004 rating decision or submit additional relevant evidence within one year of that rating decision.  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the June 2004 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 

If a claim of entitlement to service connection has been previously denied and that decision became 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); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

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) (2012).

Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision."  Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998).

The United States Court of Appeals for Veterans Claims (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.  

VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible.  See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent).

Service connection for depression was previously denied by the June 2004 rating decision because there was no current medical evidence establishing that the currently diagnosed depression either occurred in or was caused by the Veteran's military service.  The evidence of record at the time of the decision included service treatment records and VA treatment records.  The service treatment records revealed complaints of depression in February 1977 since the death of his mother.  He was seen on two additional occasions that month.  There was no evidence of depression or other mental health condition on the separation examination and on an examination in March 1980 while attempting to reenlist, he denied a history of depression, worry, or nervous trouble.  The first post service treatment for complaints of depression was in May 1981.  In September 1981 he was seen for depression originating around the time of his arrest for domestic violence.  He reported his mental health difficulties were related to involvement with his ex-wife.  The records also reflect he was seen on several occasions thereafter for suicidal ideation and attempts, substance induced mood disorder and depression.   The RO attempted to schedule the Veteran for a VA examination to obtain an opinion as to the relationship between the Veteran's current disability and service.  However, the Veteran was unable to report for the scheduled examination as he was incarcerated and the prison would not release him for the examination nor permit a VA examiner to examine him in prison.  Thus, his claim was denied due to the lack of a nexus between depression and service.

The evidence received subsequent to the June 2004 rating decision includes VA treatment records noting continued complaints of depression and anxiety since his release from prison.  A VA examination was conducted in December 2007, which diagnosed major depressive disorder and recurrent and borderline personality disorder with antisocial features.  

In a July 2012 statement, the Veteran provided additional details concerning the events contemporaneous to his mother's death while he was in service.  Specifically, he alleges that he was not provided sufficient grief counseling because after his second counseling session he was threatened with disciplinary action if he continued to seek treatment.

Presuming the credibility of the evidence for the sole purpose of determining whether new and material evidence has been submitted, the Board finds that the new evidence contributes to a more complete picture of the circumstances relating to the claimed origin of his depression, and is sufficient to trigger VA's duty to assist, as evidenced by the RO's ordering a VA examination.  Thus, such evidence is new and material and the claim for service connection for depression is reopened.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for depression is reopened.


REMAND

Reopening the claim does not end the inquiry; rather, consideration of the claim on the merits is required.  However, after a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for depression on the merits.

The evidence of record suggests that the Veteran is receiving payments from the Social Security Administration (SSA) which the Veteran alleged were for chronic depression.  VA has a duty to obtain SSA records when they may be relevant to a Veteran's claim.  See Voerth v. West, 13 Vet. App. 117, 121 (1999).

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following actions:

1.  Secure from SSA copies of their determination on the Veteran's claim for SSA disability benefits, as well as copies of the medical records considered in conjunction with that determination.  If the records are not available, the claims file should be annotated to reflect such and the Veteran should be notified of the inability to obtain such records. 

2.  Obtain mental health treatment records from the Milwaukee VA Medical Center dating from May 2009 to the present.  If no records are available, documentation stating such should be incorporated into the claims file and the Veteran notified of such.

3.  After conducting any additional development deemed necessary, the claim should again be reviewed.  If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative, and afford them an opportunity to respond.

The appellant 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.A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs