Citation Nr: 1316462 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 03-04 249 ) DATE ) ) On appeal from the Department of Veterans Affairs (/VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for service connection for a psychiatric disorder, to include a psychosis, has been received. 2. Service connection for a psychiatric disorder, to include a psychosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to March 1968. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2002 rating decision in which the RO denied the Veteran's petition to reopen the claim for service connection for a psychiatric disorder, to include a psychosis. In May 2002, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in May 2002, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals in February 2003. In June 2004, the Board issued a decision (signed by a Veterans Law Judge who is no longer with the Board) declining to reopen the Veteran's claim for service connection for a psychiatric disorder, to include a psychosis. The Veteran appealed the Board's June 2004 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2006, the Court issued a Memorandum Decision vacating the Board's June 2004 decision and remanding the claim to the Board for further proceedings consistent with the Court's decision. In March 2007, the Board remanded the claim on appeal to the RO (via the Appeals Management Center (AMC) in Washington, DC) for further development. After completing the requested development, the RO continued to deny the claim (as reflected in the July 2007 supplemental SOC (SSOC)) and returned the matter to the Board for further appellate consideration. In October 2007, the Board issued a decision again declining to reopen the Veteran's claim for service connection for a psychiatric disorder, to include a psychosis. The Veteran appealed the Board's October 2007 decision to the Court. In a June 2008 Order, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating the Board's October 2007 decision and remanding the claim to the Board for further proceedings consistent with the Joint Motion. In October 2008, the Board remanded the claim on appeal to the RO, via the AMC, for further action. After completing some of the requested development, the RO continued to deny claim (as reflected in a June 2008 SSOC) and return the matter on appeal to the Board for further appellate consideration. During the course of the appeal, the Veteran was first unrepresented, then represented by a private attorney. In May 2009, the Veteran granted a power-of-attorney in favor of Disabled American Veterans with regard to the claim on appeal. The Board has recognized the change in representation. In September 2009, the Board again remanded the claim on appeal to RO for further action. After completing the requested development, the RO continued the denial of the claim (as reflected in a February 2011 SSOC) and returned to the appeal to the Board for further consideration. In April 2011, the Board denied the petition to reopen. The Veteran appealed that decision to the Court. In July 2012, the Court issued a Memorandum Decision in which it essentially held that certain evidence was new and material for the purpose of reopening. The Court vacated the Board decision and remanded the claim on appeal to the Board for further development, as necessary, and readjudication. The Board's decision reopening the claim for service connection is set forth below. The claim for service connection, on the merits, is addressed in the remand, following the order; this matter is being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in June 2011, the Veteran applied to "reopen" a claim for service connection for diabetes. However, this issue has never been previously adjudicated by Agency of Original Jurisdiction-here, the RO. As the Board does not have jurisdiction over the matter, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. In February 1999, the Board denied the Veteran's claim for service connection for a psychiatric disorder. 2. Additional evidence associated with the claims file since the February 1999 Board denial was not previously before agency decision makers, and must be considered in order to fairly decide the merits of the claim for service connection for a psychiatric disorder, to include a psychosis. CONCLUSIONS OF LAW 1. The Board's February 1999 denial of the Veteran's claim for service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. As evidence received since the Board's February 1999 denial is new and material, the criteria for reopening the claim for service connection for a psychiatric disorder, to include a psychosis, are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (as in effect for claims filed prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Due Process Considerations 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. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition on the request to reopen, the Board finds all notification and development action needed to render a decision on this aspect of the appeal have been accomplished. II. Analysis In 1999, and presently, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, such as psychoses, which are manifest to a compensable degree (10 percent for a psychosis) within a prescribed period following termination from service (one year for a psychosis), even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). The record reflects that the Veteran's claim for service connection for a psychiatric disorder was considered and denied on several occasions prior to the Board's February 1999 denial. Initially, the RO denied service connection in May 1985, and the denial was upheld in a July 1989 Board decision. Prior to the Board's denial in February 1999, in an August 1995 rating decision the RO determined that no new and material evidence had been submitted to reopen the Veteran's claim. However, in an August 1997 decision, the Board reopened the claim, but remanded the claim for service connection, on the merits, for additional development. After the claim was returned to the Board in February 1999, the Board denied the claim for service connection on the merits, finding that the Veteran's psychiatric disorder, diagnosed as paranoid schizophrenia, began more than one year after discharge from service and was not incurred in or aggravated in service. The pertinent evidence of record at the time of the February 1999 Board decision included a December 1966 pre-service medical record reflecting that the Veteran was seen for evaluation, by court order, at a community guidance center prior to enlistment into service, but no psychiatric diagnosis was assigned because the Veteran was "extremely uncooperative" and defiant. While most of the Veteran's personnel records are unavailable, as confirmed by the National Personnel Records Center, some medical documents were of record. Copies of these records reflect that the Veteran's August 1967 pre-induction examination revealed no history of nervous trouble or depression. A February 1968 mental health note reflects a diagnosis of "immature personality with low tolerance for stress and poor judgment" and that he was recommended for administrative separation. He was discharged in March 1968 for "reasons of character and behavior disorders." Private and VA outpatient treatment records document an episode of "psychotic" behavior as early as 1976 and a diagnosis of schizophrenia in 1980. No date of onset was indicated, and his prognosis was considered to be poor. He spent approximately two years committed to a state mental health facility. An August 1984 private medical statement reflects a diagnosis of schizophrenia, paranoid type, currently in remission. The report of a July 1985 VA psychiatric evaluation likewise reflects a diagnosis of chronic paranoid schizophrenia. The Veteran was later hospitalized at a VA Medical Center in June 1987 for an acute schizophrenia episode. Private and VA medical records dated through 1995 reflect a continued diagnosis of schizophrenia and hospitalizations for acute episodes, including an involuntary commitment at the Southern Virginia Mental Health Institute in May 1995. A May 1995 statement from a private physician indicates that the Veteran's history suggested a possibility of a genetic predisposition with the Army exposing him to unique stressors that triggered his psychosis, but also indicating that the 1966 pre-service report was more suggestive of a conduct disorder than a psychosis. On VA examination in May 1998, an examiner determined that there was no objective documentation to support the conclusion that the Veteran's current paranoid schizophrenia had its onset in service or increased in severity during service. Various statements from the Veteran's mother, ex-wife, former mother-in-law, and friends essentially express that the Veteran's mental status changed for the worse after his service. The Veteran, himself, wrote that he never heard voices until he entered the service, and that he began experiencing psychiatric symptoms during service. He indicated that these voices began to tell him to go absent without leave (AWOL). In denying the claim for service connection in 1999, the Board found that there was no evidence to suggest that a psychosis was manifest in service or within the one-year presumptive period following the Veteran's discharge from service, and that the more probative evidence of record indicated that the Veteran's psychiatric disorder, diagnosed as paranoid schizophrenia, did not have its onset in or increase in severity during service. Unless the Chairman orders reconsideration, or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran's request that VA reopen the previously-denied claim for service connection was received on August 22, 2001. Regarding petitions to reopen received prior to August 29, 2001, as in this case, new and material evidence means evidence not previously submitted to agency decision makers that bears directly and substantially on the specific matter under consideration, that is neither cumulative nor redundant, and that is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly adjudicate the claim. 38 C.F.R. § 3.156(a) (as in effect for claims filed prior to August 29, 2001). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial caselaw, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83. Here, the last final denial of the claim is the Board's February 1999 decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 5410, 512-13 (1992). Pertinent evidence added to the claims file includes duplicate service records; an April 2001 letter from the Department of the Army; additional VA outpatient treatment records through February 2010; and various lay statements from the Veteran and his representative, as well as from the Veteran's friend, L.H. Clearly, the duplicate service personnel records added to the record since February 1999 are not "new" as they were previously of record. The April 2001 letter from the Department of the Army indicates that there was no basis for resubmission of the Veteran's application for correction of his military records. T his letter is "new" in that it was not previously before agency decision makers; however, this evidence is not "material" for purposes of reopening the claim for service connection because it includes nothing to indicate that the Veteran's current psychiatric disorder had its onset in service or was otherwise was incurred in or was aggravated in service. As such, this evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. As for the additionally received lay evidence, the Board notes that the statement from the Veteran's friend, while new, only confirms the Veteran's absence for a 12-hour period during basic training, and is not directly relevant to the question of whether a current psychiatric disability is medically related to service. The additional records of VA outpatient treatment, dated through February 2010, continue to document the Veteran's diagnosis and treatment of schizophrenia. However, a May 2009 VA clinical record includes a notation that the Veteran was diagnosed with schizophrenia in service in 1968, and that he had difficulty adjusting to military life and was discharged promptly. In the July 2012 Memorandum Decision, the Court stated that the May 2009 VA clinical record: ... was made by a VA psychiatrist. In a subsection entitled "Past Psychiatric History," the psychiatrist stated: "Patient endorsed multiple previous psychiatric hospitalizations. Per [Computerized Patient Record System], patient was diagnosed with Paranoid Schizophrenia in 1968 while he was in the military, and is currently being followed in Lynchburg [Community Services Board]." The Court acknowledged, as noted in the Board's April 2011 decision, that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). However, the Court determined that the Board's reliance on LeShore was misplaced. The Court noted that, on its face, there was nothing in this statement to indicate that such a diagnosis was "merely a recitation of the history relayed by [the Veteran]." The Court also found that, consistent with Justus, supra, the credibility of the May 2009 VA clinical record should have been presumed, and the claim reopened.. Under the law of the case doctrine, the Board is bound by the Court's determination that the May 2009 VA clinical record is both new and material for the purpose of reopening the claim. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a psychiatric disorder, to include a psychosis, are met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence to reopen the claim for service connection for a psychiatric disorder, to include a psychosis, has been received, to this extent only the appeal is granted. REMAND As the Board has reopened the claim, de novo adjudication of the claim is appropriate. However, the Board finds that, prior to such adjudication, further development is in order. Initially, the Board notes that the Veteran's service from December 28, 1967, to March 27, 1968, was for a period of 90 days which meets the requirement of 38 C.F.R. § 3.307(a)(1) of 90 days of service during a period of war in order to qualify for the one year presumption of service connection for a chronic disease listed at 38 C.F.R. § 3.309(a) (and a psychosis is listed at § 3.309(a) as such a chronic disease). Pertinent to VA's duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). However, "[w]hen the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits." Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). "This is because the RO generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied." Id. at 403 (internal citations omitted). "Thus, if the Board initially reopens a claim when the RO has not considered the need for a medical examination or opinion, or assessed the credibility of the evidence, the Board would be considering law that the RO had not already considered, possibly implicating [38 C.F.R.] § 20.903(b)." Id. In view of the additional evidence received, the Board finds that an examination and medical opinion would be helpful in adjudicating the claim. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2012). The threshold for determining whether the evidence 'indicates' that there 'may' be a nexus between a current disability and an in- service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Here, although the May 2009 medical record and notation is sufficient to reopen the claim, it is unclear whether the examiner is reiterating the Veteran's own reported history, and, if a medical opinion, the basis for the opinion is not clearly stated. Accordingly, more definitive medical information nature and etiology of all current psychiatric disability, supported by clearly stated rationale, is needed to resolve the claim for service connection, on the merits. Id. Accordingly, the RO should arrange for the Veteran to undergo VA examination, by a psychiatrist or psychologist, at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in denial of the reopened claim for service connection. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim for service connection, on the merits. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain. any outstanding, pertinent private records of mental health evaluation and/or treatment.. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the appropriate agency of the responsibility to ensure full compliance with the duties imposed by the VCAA. Hence, in addition to the actions requested above, any other development and/or notification action deemed warranted by the VCAA should be undertaken prior to adjudicating the claim for service connection on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain. any outstanding, pertinent records of private mental health evaluation and/or treatment. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. Assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe any further actions(s) to be taken. The records obtained should be associated with the claims file. 3. After all records and/or responses from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo VA examination, by a psychiatrist or psychologist, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, and copies of all pertinent records from Virtual VA, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies, to include psychological testing, if deemed warranted, should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all psychiatric disability(ies), to include paranoid schizophrenia, found to be present since June 1995. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability: (a) had its onset during the Veteran's active duty; or, if not, (b) was manisfested to a compensable degree within one year of his discharge from active service on March 27, 1968. In rendering the requested opinion, the physician should consider and discuss all pertinent medical and other objective evidence, to include the May 2009 and record and notations referenced above. The examiner should also consider and discuss all pertinent lay evidence-in particular, statements of the Veteran and by others on his behalf. Such should include the statement from his ex-wife (who was married to him during his active service) that, during their marriage the Veteran was paranoid and displayed aggressive behavior. Also, other lay statements attesting to the Veteran's behavior or personality, or both, having changed or been different following his active service should be considered and discussed. The psychiatrist or psychologist should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include obtaining any further opinion, if appropriate), adjudicate the claim for service connection. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provision of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim for service connection, on the merits, in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs