Citation Nr: 1320598 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 12-29 314 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, to include bipolar affective disorder with psychotic features; schizoaffective disorder, bipolar type; and posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 1990 through January 9, 1993. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the RO. Although a claimant may identify a particular mental condition on the claims form accompanying his application for VA benefits, the scope of the claim cannot be limited only to the condition stated. Rather, it must be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Where, as in this case, there is a final VA decision denying a claim based on particular diagnoses (entitlement to service connection for bipolar affective disorder with psychotic features and PTSD) and, subsequently, a new and different diagnosis is submitted for VA's consideration ( in this case, schizoaffective disorder), the new diagnosis must be considered factually distinct from the previous diagnoses and must be considered to relate to a separate claim. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In the context of requests to reopen claims of service connection, this accomplishes a balancing effect that preserves the finality of VA decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. See Clemons, 23 Vet. App. at 8 (2009). However, the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. As discussed below, the record shows that since the Veteran filed his initial claim of entitlement to service connection for psychiatric disorder, the various health care providers and examiners have diagnosed the Veteran's psychiatric disorder, primarily on the basis of the same set of stressors and symptoms: stressors from the Veteran's claimed prisoner of war experiences, and symptoms of racing thoughts, paranoia, sleep disturbance, agitation and confusion for bipolar disorder and schizoaffective disorder. Moreover, the primary psychiatric diagnosis prior to April 2008, which was bipolar affective disorder with psychotic features, is very similar to the primary psychiatric disorder diagnosed after April 2008, schizoaffective disorder, bipolar type. Therefore, the Board finds that the primary diagnoses of bipolar affective disorder with psychotic features and schizoaffective disorder represent subjective differences of opinion as to the nature of one condition, rather than multiple separate conditions. Accordingly, the Board has recharacterized the issue on the title page to better reflect the scope of his claim. 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). FINDINGS OF FACT 1. In an April 2008 unappealed rating decision, the RO denied the Veteran's claim of entitlement to service connection for a nervous disorder, claimed as PTSD and bipolar affective disorder with psychotic features. 2. Evidence associated with the record since the RO's April 2008 decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a nervous disorder, including PTSD, a bipolar disorder with psychotic features, or schizoaffective disorder. CONCLUSIONS OF LAW 1. The RO's April 2008 rating decision, which denied the Veteran's claim of entitlement to service connection for a nervous disorder, primarily diagnosed as PTSD and a bipolar affective disorder with psychotic features, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been submitted to reopen the Veteran's claim of entitlement to service connection for a nervous disorder, including PTSD, a bipolar disorder with psychotic features, and schizoaffective disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to notify him as to what evidence would suffice to reopen his claim and if appropriate, assist him in the development of any reopened claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that VA has met that duty. The claim of entitlement to service connection for bipolar disorder was initially denied by the RO in November 1997. An application to reopen the claim was denied by the RO in February 1999, because the Veteran had not submitted new and material evidence. In September 2003, the RO denied the Veteran's claim of entitlement to service connection for a nervous disorder. In April 2008, the RO denied the Veteran's application to reopen his claim for entitlement to service connection for a nervous disorder, because the Veteran had not submitted new and material evidence with which to reopen the claim. The RO also denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran was notified of each of the foregoing decisions, as well as his appellate rights. However, he did not perfect an appeal with respect to any of those decisions. Therefore, those decisions became final under the law and regulations then in effect. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1103. In its January 2012 rating action, the RO found that the Veteran had submitted new and material evidence to reopen a claim of entitlement to service connection for PTSD and a nervous disorder, claimed as schizoaffective disorder. However, the RO confirmed and continued the denial of service connection for those disorders, because the Veteran's claimed PTSD-related stressor could not be verified; the Veteran's schizoaffective disorder was manifested more than one year after service; and the preponderance of the competent evidence of record was against a finding of a nexus to service. In October 2010, the Veteran filed an application to reopen his claim of entitlement to service connection for a nervous disorder, claimed as PTSD. He also filed an original application for service connection for schizoaffective disorder. Following the receipt of his applications, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. With respect to his application to reopen his claim of entitlement to service connection for a psychiatric disorder, VA informed the Veteran of the bases for the prior denials and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also informed him of the evidence necessary to support the underlying service connection claim. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the following relevant evidence: the Veteran's service treatment and personnel records; records reflecting his treatment at the William S. Hall Psychiatric Institute from January 1994 through December 2000; the reports of VA examinations, performed in October and November 1996 and July 2010; records and reports from the South Carolina Department of Mental Health, dated from May 1999 through March 2004; records reflecting the Veteran's VA treatment from January 2004 through August 2012; a report reflecting the Veteran's treatment at the Columbia Care Center from November 2007 through September 2008; the Veteran's records from the Social Security Administration; and the report of a July 2010 VA examination. The report of the July 2010 VA examination (which was performed in conjunction with the Veteran's request to reopen his claim of entitlement to service connection for a psychiatric disorder) shows that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his psychiatric conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examination is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In January 2011, VA received the Veteran's request for a video conference with a Veterans Law Judge. However, later that month, the RO informed the Veteran that there was no evidence that he had an active appeal before the Board. Therefore, the requested hearing was not held. In his substantive appeal (VA Form 9, dated in October 2012) submitted in conjunction with his current claim, he declined VA's offer to have a hearing before a member of the Board. Accordingly, the Board will consider the claim, as the Veteran does not wish to have a hearing. In developing the record, VA made efforts to obtain copies of the Veteran's treatment at the Kindred Hospital from 1993 to the present. However, in February 2012, a representative of Kindred Hospital stated that it had no records of the Veteran having been a patient. There is no reason to believe that further efforts to obtain such evidence would be any more productive. Further development in this regard would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, such development is not warranted. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to determine whether or not new and material evidence has been received to reopen his claim of entitlement to service connection for a psychiatric disorder, claimed as PTSD, schizoaffective disorder, and/or bipolar affective disorder with psychotic features. Analysis In considering the Veteran's claim, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) ; see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). In his substantive appeal, the Veteran essentially acknowledged that he had first been treated for psychiatric problems on January 12, 1994, approximately 1 year and 3 days after his separation from service. He stated that the manifestations of his psychiatric disorder, including racing thoughts, irritability, sleep disturbance, confusion, and disorganization had first been manifested several days prior to January 12, 1994. Therefore, he contends that his bipolar affective disorder with psychotic features had its onset within his first year after service. Accordingly, he maintains that service connection is warranted for a psychotic disorder on a presumptive basis. In the alternative, the Veteran contends that he has PTSD, as a result of his experiences in the Persian Gulf War. He states that when he landed in Saudi Arabia, he was captured and that he spent the next two weeks as a prisoner of war. He contends that since that time, he has had sleep problems, nightmares, and anxiety and that service connection is, therefore, warranted for PTSD. The Veteran is competent to report what he experienced during and since the conclusion of his service. For example, he is competent to report that he was having racing thoughts, irritability, sleep disturbance, and paranoid thoughts in the days preceding his hospitalization on January 12, 1994 See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide its probative value, including when evaluating medical opinions. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. For certain disabilities, such as psychoses, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. Service connection for PTSD, in particular, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis which conforms to the criteria set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th edition (DSM-IV); a link, established by medical evidence, between the current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor actually occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the conditions or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the inservice stressor. 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f); See Cohen v. Brown, 10 Vet. App. 128 (1997). Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed. Id. at 144. Nevertheless, credible evidence that the claimed in-service stressor actually occurred is also required. 38 C.F.R. § 3.304(f). VA law and regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In April 2008, when the RO last denied the Veteran's claim of service connection for a nervous disorder, the evidence on file consisted of the Veteran's service treatment and personnel records; records reflecting his treatment at the William S. Hall Psychiatric Institute from January 1994 through December 1994; the reports of VA examinations, performed in October and November 1996; records and reports from the South Carolina Department of Mental Health, dated from May 1999 through March 2004; and records reflecting the Veteran's VA treatment in March 2004 and from February through November 2007. The evidence showed that on January 12, 1994, one year and three days after his separation from service, the Veteran had been hospitalized at the William S. Hall Psychiatric Institute, on emergency referral from the Charleston County Detention Center. He had been jailed on charges of first degree burglary, destruction of private property, and assault and battery. He had escaped from custody and jumped into the Ashley River. However, he was retrieved and taken to the emergency room where he was successfully treated for hypothermia. On admission to the William S. Hall Psychiatric Institute, the Veteran denied any previous mental illness or mental health treatment. However, he reported racing thoughts, irritability, sleep disturbance, a depressed mood, and ideas that people were monitoring him and trying to harm him. Following his release from the hospital in March 1994, the diagnosis was bipolar affective disorder with resolution of his manic symptoms. Approximately two weeks later, the Veteran reportedly decompensated and was readmitted to the William S. Hall Psychiatric Institute. Again, the diagnosis was bipolar affective disorder. In November 1996, the Veteran was examined by VA to determine the nature and etiology of any psychiatric disorder found to be present. He said he was sick and "hyper" in service and that he had a history of hallucinations. As to the charges for which he had been jailed in January 1994, he had been found not guilty by reason of insanity. Following the examination, the diagnosis was bipolar disorder. Thereafter, the Veteran had multiple periods where he was alternately found competent and incompetent to manage his funds. In July and August 2006, the Veteran was involuntarily hospitalized by VA, due to severe agitation and psychosis. He perseverated about being a Desert Storm Warrior. At the time of his discharge from the hospital, the Veteran's diagnosis was severe bipolar disorder with psychosis. Thereafter, the Veteran was hospitalized by VA on multiple occasions in 2007. Each time, the diagnosis was bipolar disorder with psychotic features. In November 2007, the Veteran claimed entitlement to service connection for PTSD in addition to that for service connection for a nervous disorder, diagnosed primarily as bipolar affective disorder with psychotic features. In January 2008, the Veteran reported that he experienced stressors in service which led to his psychiatric disorder. Specifically, he noted that during the Persian Gulf War, he had served in the Southwest Asia Theater of Operations. He alleged that almost immediately after his arrival in theater, he had been confronted by armed individuals and taken prisoner. He alleged that he drank his captors water and ate their food and that when he informed them that he would become Muslim, they released him. In January 2008, VA attempted to corroborate the Veteran's stressors with the National Personnel Records Center. However, the National Personnel Records Center reported that it had no information that the Veteran was ever a prisoner of war. Despite the Veteran's treatment for a psychiatric disorder from January 12, 1994 through 2007, there was no competent, objective evidence that the Veteran's bipolar affective disorder with psychotic features was in any way related to any incident in service. Moreover, there was no established diagnosis of PTSD or any objective evidence to corroborate his claimed stressor. Therefore, in April 2008, the RO confirmed and continued its denial of entitlement to service connection for a nervous disorder, claimed as bipolar affective disorder. It also denied the Veteran's claim of entitlement to service connection for PTSD. As noted above, that decision was not appealed and became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. 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 which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Evidence added to the record since the RO's April 2008 decision consists of records reflecting Veteran's treatment at the William S. Hall Psychiatric Institute from December 1994 through December 2000; a report reflecting the Veteran's treatment at the Columbia Care Center from November 2007 through September 2008; records reflecting the Veteran's VA treatment from November 2007 through September 2010; the Veteran's records from the Social Security Administration; and the report of a July 2010 VA examination. Such evidence is new in the sense that it has not previously been before the VA. However, it is not material as it does not tend to substantiate the Veteran's previously denied claim of entitlement to service connection for any psychiatric disorder, since the RO's April 2008 denial. As above, the additional evidence is negative for any findings of a psychiatric disorder prior to January 12, 1994. Although the July 2010 VA examiner stated that it was at least as likely as not that the Veteran's psychotic disorder was related, in part, to his military trauma of being a prisoner of war, the VA examiner predicated that conclusion on a finding that the claimed stressor had actually occurred. He stated that if there was no evidence to confirm the Veteran's stressful incident in service, then it was less likely than not that the Veteran's psychotic disorder was related to service. To this point, the evidence remains negative for any competent evidence to substantiate the Veteran's reported stressor in service. To the extent that the examination linked the Veteran's psychiatric disorder to service, it is not competent due to the examiner not having the correct information before him (and further cannot be substantiated because the Veteran was not a prisoner of war) and the opinion is therefore not material. Because the additional evidence does not tend to substantiate any element of the previously denied claims, it is either cumulative or redundant in nature and not material. Even when considered with the evidence previously of record, it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD or a nervous disorder, claimed as schizoaffective disorder and bipolar affective disorder with psychotic features. Therefore, the additional evidence is not new and material for the purpose of reopening the claim. Accordingly, the prior denial of service connection for a psychiatric disorder is confirmed and continued, and the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER New and material evidence not having been presented, the request is denied to reopen the Veteran's claim of entitlement to service connection for a nervous disorder, claimed as PTSD, schizoaffective disorder, and bipolar affective disorder with psychotic features. ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs