Citation Nr: 1319717 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 10-20 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disability. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from September 1961 to February 1963. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Evidence received since the last final decision of record, which denied service connection for an acquired psychiatric disability, relates specifically to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material having been received, the claim for service connection for an acquired psychiatric disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim of entitlement to service connection for a psychiatric disability. The claim on the merits requires additional development, which is addressed in the remand below. Therefore, no further development is needed with respect to the aspect of the appeal decided herein. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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). In determining whether evidence is new and material, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Analysis Entitlement to service connection for a psychiatric disorder was denied in a February 1972 rating decision. The basis of this denial was that the Veteran's diagnosed psychiatric disability, which had been documented as schizophrenia at that time, did not have causal origins in service (and did not manifest to a compensable degree within the first post-service year). While the Veteran initiated an appeal, he did not perfect it, and the claim became final within a year of notification to him. An attempt to reopen was denied in September 1981 on the grounds of no new and material evidence having been submitted, and while again an appeal was initiated, it was not perfected, and the decision became final within a year of notification to him. Somewhat more recently, the Board denied a reopening of the Veteran's claim on two separate occasions. The earliest of these, dated in June 1991, stated that there was no new and material evidence supportive of reopening; and, the most recent determination, dated in November 2004, contained a similar assessment. Both of these decisions are final, as they were not appealed to the U.S. Court of Appeals for Veterans Claims (Court). The Veteran has now come forth with his current claim alleging, essentially, that new and material evidence does exist so as to reopen his claim. In forwarding the current application to reopen, the Veteran has added a new theory of entitlement to his claim. That is, he alleges that his current psychiatric disability, variously diagnosed as schizophrenia, general anxiety, and major depression, was either caused or aggravated beyond the natural progression of the disease process by a lumbar spine condition that is subject to compensation (as due to 38 U.S.C.A. § 1151). The RO, in noting this, scheduled the Veteran for an examination with a VA psychiatrist in February 2008. In the associated examination report, the Veteran's wife reported that the Veteran was terminated from a job due to being "anxious" as due to back complaints. Furthermore, while it is not abundantly clear given the sentence structure utilized by the examiner, the Veteran's spouse also appears to have made an implication that the Veteran attempted suicide within the last 10-15 years, at least in part, as a consequence of "having back pain." The examiner's opinion is focused solely on the secondary aspect of the claim, and with regard to resolving the issue on appeal, is rather equivocal and conclusory in nature. Indeed, the examiner stated that the Veteran's depression was not caused by lumbar myositis because the Veteran suffers from other "far more serious conditions that may also cause pain and disability" (emphasis added). In so stating, it is clear that the VA psychiatrist noted that "pain and disability" are associated with lumbar myositis, and that while perhaps not as severe as other nonservice-connected/compensable conditions which "also cause" pain and disability, such pain, at least implicitly, was noted to be a factor in the onset of depression. Why the examiner felt that the contribution of lumbar myositis to the overall pain and disability picture would not be sufficient to cause depression was not elaborated; however, it cannot be denied that some level of contribution did exist in his view, and that the combined pain/disability picture, which also, by necessity, would include a service-connected ulcer disorder, played some role in the development of a current psychiatric disorder. This evidence is new, in that it was not of record at the time of the last denial by the Board in 2004. Moreover, it is material to the claim. Indeed, the reports of the Veteran's spouse, while somewhat ambiguous, do represent new testimonial evidence given to VA personnel which, while not conclusively linking a current psychiatric disorder to a back condition, do indicate that the Veteran had some psychiatric symptoms associated with back complaints. Furthermore, the examiner's opinion, while ostensibly negative, did raise the possibility of "pain and disability" as being productive of a psychiatric disorder. For unspecified reasons, the examiner believed that the lesser contribution of lumbar myositis was not as significant as other, nonservice-connected/non-compensated disabilities, and he made no elaboration as to the contribution of service-connected ulcer disease; however, his usage of the term "also" did suggest, at the very least, that there is, potentially, some contribution to the overall pain and disability picture associated with the back condition. Overall, the assessment that "pain and disability" have some contribution to the Veteran's psychiatric disability (which would, by necessity, include service-connected ulcer disease and a compensable lumbar disorder) relates to an unestablished fact (i.e. a nexus between a service-connected/compensable disorder and a current psychiatric disability) that is necessary to substantiate the underlying claim for service connection. Accordingly, the claim is reopened. ORDER New and material evidence having been received, the claim to reopen a claim for entitlement to service connection for an acquired psychiatric disability is reopened; to that extent only, the claim is granted. REMAND The Veteran in this case was discharged from service for what was, at the time, categorized as an emotional reaction and a lack of maturity. The Veteran's commanding officer wrote a report to the medical board at the time proximate to the Veteran's discharge, and he stated, essentially, that the Veteran lacked the maturity and self-awareness needed to perform as an infantry soldier; however, it was the officer's firm belief that this was not due to any form of dishonesty or malingering. As an example of the Veteran's strange behavior, the officer noted how the Veteran was assigned to handle moving targets at a firing range and that he failed to adhere to safety precautions. The officer noted that this was, in his view, typical of how the Veteran was very unaware of his surroundings. During the Veteran's psychiatric assessment prior to his separation, in November 1962, the Army psychiatrist noted that the Veteran was very focused on his alleged inability to eat and digest Army food. The Veteran is service-connected for an ulcer, and apparently, was intently "focused" on this disorder while on active duty, and it had some role in his not being able to function as a soldier. The examiner noted that the Veteran was "very immature" and "angry," and a discharge for unsuitability was recommended and eventually approved. The Veteran has had multiple episodes of mental health treatment, both inpatient and outpatient, since the 1970s. He has been variously diagnosed as having a personality disorder, as well as acquired pathology. Indeed, the Veteran was assessed as being schizophrenic in the 1970s, and throughout the 1980s and 1990s had treatment for generalized anxiety disorder and depression. The first diagnosis of an acquired disorder was approximately nine years after the release from active duty. However, at no time, has the Veteran ever been afforded a VA examination which directly addressed whether it is at least as likely as not that a current acquired psychiatric disorder had causal origins in service. Indeed, a very cursory VA examination was afforded in December 1971, and at this time "psychoneurosis" was diagnosed with a recommendation for further psychiatric evaluation. While this report noted the presence of some form of psychiatric complaints since Army service (which is not debated), it was not clear as to if the Veteran experienced any acquired pathology that was directly related to that active service (i.e. the in-service diagnosis of "emotional reaction" or "immaturity," while indicative of a potential personality disorder, do not establish the presence of an acquired psychiatric disability). In light of the above, the Board is of the opinion that a new, comprehensive VA psychiatric examination is to be afforded. The examiner is to review the in-service history, and should address as to if it is at least as likely as not that any current acquired psychiatric disability had causal origins in active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as noted, the 2008 VA opinion did suggest that there is some potential linkage between the Veteran's overall "pain and disability" and his current mental health status. While this examiner's negative opinion regarding a potential linkage between a lumbar spine disorder and the claimed disability is not very helpful in resolving the appeal, the opinion does, at the very least, posit the suggestion of service-connected/compensable disablement (as part of the overall disability picture) having some causal or aggravating role in the onset of a current psychiatric disability. The Veteran is in receipt of disability benefits for lumbar myositis at a 40 percent evaluation and for a peptic ulcer at a 10 percent evaluation. Thus, in the requested opinion, the examiner should thus also address as to if it is at least as likely as not that these disabilities cause or aggravate any acquired psychiatric disability beyond the natural progression of the disease process. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records from February 2008 (the date of the last examination) to the present. Should no such records exist, annotate the file accordingly. 2. Schedule the Veteran for a psychiatric examination with an examiner other than the one who conducted the 2008 assessment. In this regard, it is asked that the examiner review the claims file, and after the conduction of all necessary tests, render an opinion as to if it is at least as likely as not (50 percent probability or greater) that any currently present acquired psychiatric disability, to include depression, schizophrenia, and general anxiety disorder, had its onset inservice or was otherwise etiologically related thereto. Additionally, the examiner should note whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service connected lumbar myositis and/or peptic ulcer disease, together or independently, and with or without the influence of other, nonservice-connected disabilities, cause or aggravate any current acquired psychiatric disability beyond the natural progression of the disease process. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Following the above-directed development, re-adjudicate the Veteran's claim. Should the benefit not be granted, issue an appropriate supplemental statement of the case and forward the claim to the Board for adjudication. 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. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs