Citation Nr: 1317425	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  10-07 200	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for post-operative residuals of a left wrist disability.

2.  Entitlement to service connection for post-operative residuals of a left wrist disability.

3.  Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The Veteran served on active duty from December 1962 to January 1963 and from October 1973 to March 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Veteran's psychiatric disabilities have previously been addressed as two issues: entitlement to service connection for PTSD and entitlement to service connection for depression, secondary to a low back disability.  When a claimant makes a claim of entitlement to service connection for a psychiatric disability, he is seeking service connection for any acquired psychiatric disability regardless of how those symptoms are labeled.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The Board therefore has combined the claims, and will address the multiple psychiatric diagnoses addressed in the claims file under one claim.

In April 2013, the Veteran testified before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C.  He was accompanied by his son, who offered no testimony of his own.  A transcript of the hearing has been associated with the claims file. 

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

The issues of entitlement to service connection for post-operative residuals of a left wrist disability and an acquired psychiatric disorder, addressed in the REMAND portion of the decision below, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a May 1963 rating decision, the RO denied the claim for service connection for a left wrist disability; the Veteran did not appeal.

2.  The evidence received since the May 1963 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left wrist disability.


CONCLUSIONS OF LAW

1.  The May 1963 decision is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.160(d), 20.302 (2012).

2.  New and material evidence has been received to reopen the claim of service connection for post-operative residuals of a left wrist disability.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.159 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

In this decision, the Board reopens the Veteran's previously denied claim of entitlement to service connection for post-operative residuals of a left wrist disability.  As this represents a complete grant of the benefit sought, limited to the only issue decided herein, to reopen the previously denied claim, no discussion of VA's duty to notify and assist, including consideration of whether the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), is necessary. The Board notes, as will be discussed below, that further assistance is necessary prior to review of the merits of the claim.

New and Material Evidence

In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302.  Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 

New evidence is defined as 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.  See 38 C.F.R. § 3.156(a). 

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.   

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision."  Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). 

In this case, the Veteran's initial claim of entitlement to service connection for a left wrist disability was denied in a May 1963 RO rating decision.  The claim was initially denied because the RO found that the Veteran entered service with a left wrist disability and the evidence of record did not show that it was aggravated during his period of service.  Within one year of the RO's May 1963 rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period.  See 38 U.S.C.A.      § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52.  As such, the May 1963 RO rating decision became final. 

The evidence of record at the time of the May 1963 RO rating decision included service treatment records from the Veteran's period of service from December 1962 to January 1963 and an April 1963 VA examination and medical opinion.  Four volumes of records have been added to the claims file since the May 1963 rating decision.  These records include: service treatment records from the Veteran's second period of service from October 1973 to March 1974; VA treatment records indicating the excision of a cyst from the left wrist and of neurological symptoms associated with the left wrist; and statements from the Veteran that his left wrist was aggravated during his active service, including those rendered at the time of his Board hearing.

In this regard, as to the evidence added to the claims file since the May 1963 RO rating decision, additional service treatment records from the Veteran's second period of active service from October 1973 to March 1974 were obtained.  Regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence).  38 C.F.R. § 3.156(c) (2012).  However, the newly-associated service treatment records were not available, in that they did not exist at the time of the May 1963 RO rating decision and reconsideration, as opposed to reopening, of the Veteran's claim under is not warranted based upon receipt of these service treatment records. 

The Board notes that the RO has previously addressed the Veteran's aggravation theory of entitlement to service connection based upon his period of service from December 1962 to January 1963 only.  While separate theories in support of a claim for a particular benefit are not equivalent to separate claims, and a final denial on one theory is a final denial on all theories, the Board finds that the aggravation theory of entitlement applied to an additional period of service is sufficient to meet the liberal new and material evidence requirements.  See Robinson v. Mansfield, 21 Vet. App. 545 (2008).  In determining that the evidence submitted since the May 1963 RO rating decision was both new and material, the Board took cognizance of whether the evidence could, if the claim was reopened, reasonably result in the substantiation of the claim with VA's assistance.  38 C.F.R. § 3.303(b); see Shade, 24 Vet. App. at 117. 

As the Board has determined that new and material evidence has been received as to the Veteran's claim, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits.  In this case, a letter dated in January 2008 provided the Veteran with the laws and regulations pertaining to consideration of his claim of on the merits.  However, as will be discussed below, further development is required prior to the Board's review of the merits of the claim. 


ORDER

New and material evidence having been received; the claim of entitlement to service connection for post-operative residuals of a left wrist disability is reopened.


REMAND

Concerning the reopened claim for service connection for post-operative residuals of a left wrist disability, as well as the claim for service connection for an acquired psychiatric disorder, a preliminary review of the record reflects that further development is necessary.

Considering the physical claims file and Virtual VA, the most recent VA treatment records are dated in September 2012.  Because VA is on notice that there are additional records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Dunn v. West, 11 Vet. App. 462, 466-67 (1998). 

As to the claim for service connection for post-operative residuals of a left wrist disability, in Hickson v. Shinseki, the Court noted that when 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 to preserve for that claimant one review on appeal.  Hickson, 23 Vet. App. 394, 399 (2010).  Accordingly, the claims file needs to be returned to the RO for initial adjudication of the claim on the merits.

The Veteran asserts that while he had a pre-existing left wrist disability prior to entering service, as he cut his left wrist in childhood, such was aggravated by the physical training he endured during both periods of active service and the in-service surgical treatment he received in January 1963.  He underwent VA examination in April 1963, and a well-healed scar, full range of motion, and moderate impairment in the grip were recorded.  He underwent VA examination in December 1997, and a well-healed scar, decreased sensation to touch, and full range of motion were noted.  His post-service VA and private treatment records indicate that he has reported decreased strength and weakness in the left wrist, and removal of a ganglion cyst.  

The Board thus seeks a VA opinion as to whether the Veteran's pre-existing left wrist disability was aggravated by his active service.  VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995).

As to the claim for service connection for an acquired psychiatric disability, such had previously been considered to include whether any acquired psychiatric disorder was secondary to a low back disability, or whether any PTSD was due to an in-service low back injury.  The Veteran is not service-connected for a low back disability, and has been denied service connection for such on numerous occasions, most recently by the RO in September 2012.  However, a review of his statements made during the course of the appeal, including those rendered at his Board hearing, indicates that the Veteran asserts that his in-service low back injury was the in-service event/stressor which gave rise to his current acquired psychiatric disorder(s).  Thus, his claim is indeed a claim of entitlement for service connection on a direct basis and the Board has captioned it as such on the title page herein.  

In January 2008, the Veteran provided a PTSD stressor statement where he described his "stressor" as his low back injury in service.  In May 2008, he provided another PTSD stressor statement where he noted he injured his low back in service, and that it was stressful because he could no longer work to provide a life for himself as a result of his low back disability.  In November 2011, the Veteran provided a third PTSD stressor statement where he provided two stressors: (1) that he feared for his life during basic training because he was "put on alert for the Cuban crisis;" and (2) that when he injured his back in service he feared he would be paralyzed.  

The Veteran's service treatment records are silent for complaints, treatment, or diagnoses pertaining to an acquired psychiatric disorder.  There is record of a November 1973 low back injury with profiles from full duty.  The earliest mental health treatment record is from July 1995, at which time he had recently fallen in his home subsequent to back pain, and reported that his back and leg pain kept him frustrated.  The VA psychiatrist observed a mildly depressed mood and diagnosed the Veteran with possible mild depression, secondary to pain syndrome.  In April 1996, the Veteran reported a depressed mood and insomnia associated with his back pain.  The VA neuropsychiatrist noted that his depressed mood was in direct relationship to his degree of pain, secondary to his back pain and not independent; and he was diagnosed with depression, not otherwise specified, previously called dysthymia. 

In December 1997, the Veteran was afforded a VA mental disorder examination in conjunction for his claim for nonservice-connected pension.  He indicated that the depression was associated with his increased limitations of activities of daily living as a result of his physical disabilities.  He reported he had to stop working in 1993 as a result of his increasing back pain.  He was diagnosed with dysthymic disorder with a history of chronic pain syndrome.  In December 2004, the Veteran was diagnosed with a pain disorder associated with both psychological factors and a general medical condition, as well as dysthymic disorder by history.  
A private psychiatrist diagnosed the Veteran with dysthymia "v. PTSD/major depressive disorder" in April 2009.  He complained of melancholic depression for most of his life with exacerbations of depression throughout his history after his military experience.  He indicated he developed chronic pain in his low back in service, and continued to have increased pain.  The Veteran is in receipt of disability benefits from the Social Security Administration (SSA) as a result of his low back disability/chronic pain syndrome, dysthymia, and borderline intelligence.  His SSA records include numerous private and VA treatment notes attributing his dysthymia to his chronic pain syndrome.  In addition to the VA mental health treatment records contained in the four-volume claims file, Virtual VA contains records from April 2008 to March 2012.  These records contain multiple diagnoses of "mood disorder due to general medical condition."  The general medical condition is noted to be chronic pain.

While it is clear that a number of treating professionals have attributed the Veteran's acquired psychiatric disorder to his chronic pain, including his low back, which was injured during service in November 1973, it is unclear if any acquired psychiatric disorder is related to the in-service low back injury, as opposed to any post-service history, to include falls, motor vehicle accident, and heavy labor.  In essence, the Board seeks a medical opinion as to whether the in-service low back injury was severe enough to cause any subsequent acquired psychiatric disorder.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette, 8 Vet. App. 69.

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) (2012).  Expedited handling is requested.)

1.  Obtain and associate with the claims file treatment records from the VA Medical Center (VAMC) in Durham, North Carolina, including the Community Based Outpatient Clinic (CBOC) in Raleigh, North Carolina, dated from September 2012 to the present.  If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records.  

2.  Then, schedule the Veteran for a VA examination as to his left wrist disability.  The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's pre-existing left wrist disability was aggravated, or underwent an increase in the underlying pathology beyond that of natural progression, during either period of his active service, specifically considering the physical training he endured and the surgical procedure he underwent in January 1963.  

3.  Schedule the Veteran for a VA examination to determine the etiology of any acquired psychiatric disorder.  The examiner must consider all prior diagnoses of record, including PTSD, major depressive disorder, depression, dysthymia and mood disorder, and opine as to whether it is at least as likely as not (at least a 50 percent probability) that any acquired psychiatric disorder was incurred in service, or is otherwise related to service. 

In this regard, the examiner must consider whether any of the Veteran's diagnosed psychiatric disorders is attributable to his in-service November 1973 low back injury (to the exclusion of his post-service falls, motor vehicle accident, or any other medical conditions).  If PTSD is diagnosed, the examiner should identify the underlying stressor. 

The examiner must also consider the Veteran's statements regarding his in-service low back injury and his statements of continuous back problems after service.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion).

The claims file, to include a copy of this remand, should be made available to the examiners for review in conjunction with the examinations, and the examiners should note such review.  A complete rationale should be provided for all opinions given.  The opinions should be based on examination findings, historical records, and medical principles.  The examiners should fully articulate a sound reasoning for all conclusions made.

If the requested opinions cannot be provided without resorting to mere speculation, the examiners should so state but, more importantly, explain why an opinion cannot be provided without resorting to mere speculation, as merely stating this will not suffice.

The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination.

4.  Subsequent to the VA examinations, review the examination reports to ensure complete compliance with the directives of this remand.  If any deficiency is found, corrective procedures must be implemented. 

5.  Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims, considering any additional evidence added to the record.  If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto.  Thereafter, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal.  Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending any requested VA examination may result in an adverse determination.  See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).

These claims 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


Department of Veterans Affairs