Citation Nr: 1323530 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-28 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim seeking entitlement to service connection for psychiatric disability, to include sleep disturbance, and if so whether the claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1981 to November 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Although the RO ultimately reopened the claim and denied it on the merits in a June 2010 Statement of the Case, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran provided testimony at a February 2012 before the undersigned Veterans Law Judge at the Board's office in Washington, D.C. A transcript of the proceeding is of record. The Veteran was denied entitlement to service connection for a psychiatric disability, claimed as secondary to a left hip disorder, in an April 2004 unappealed rating decision. In May 2008, the Veteran filed a claim seeking, among other things, entitlement to service connection for depression, sleep disorder, anxiety, and a mood disorder. During his February 2012 hearing before the Board, the Veteran clarified that all his claimed conditions, to include "sleep disorder," are part of his psychiatric disorder claim. The Board has characterized the issue on appeal accordingly. FINDINGS OF FACT 1. An April 2004 rating decision denied entitlement to service connection for a psychiatric disability; the Veteran did not appeal the rating decision or submit any pertinent evidence within the appeal period. 2. The evidence received after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and establishes a reasonable possibility of substantiating the claim. 3. The Veteran's service-connected disabilities played a material causal role in his development of a psychiatric disability with sleep disturbance. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim for service connection for psychiatric disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Psychiatric disability with sleep disturbance is proximately due to or the result of service-connected disabilities. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Claim to Reopen Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An 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 Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Factual Background and Analysis The Veteran's claim seeking service connection for a psychiatric disability was originally denied in an April 2004 rating decision because the Veteran claimed the condition secondary to a left hip disorder, and the Veteran was not service-connected for a left hip disorder. The evidence also did not show in-service incurrence or aggravation of a psychiatric disorder. The Veteran did not appeal this decision or submit any pertinent evidence within the appeal period. The Veteran again sought service connection for a psychiatric disability in 2008 claiming he had anxiety, a mood disorder, a sleep disorder, and depression as a result of the physical limitations and changes to his lifestyle due to service-connected physical disabilities. Namely, the Veteran indicated his vertigo and right shoulder disability in particular forced him into early retirement and worsened his depression. The evidence received after the expiration of the appeal period includes medical records reflecting variously diagnosed psychiatric disorders, such as anxiety, affective disorder, sleep disorder, and major depressive disorder. A June 2009 VA examination, moreover, includes an opinion that the Veteran's major depressive disorder is secondary to his physical conditions (to include both service-connected and non-service-connected disorders) and its subsequent impact on his activities and quality of life. Private opinions dated in September 2009 and July 2010 similarly link the Veteran's depression to physical disabilities, to include service-connected disabilities. VA and private treatment records indicate ongoing treatment for psychiatric symptoms, to include multiple psychiatric hospitalizations. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, it is new and material and reopening of the claim is warranted. Reopened Claim Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran claims he has sleep and mood disturbances, to include depression and anxiety, as a result of his service-connected disabilities, to include vertigo and a right-shoulder disability. His vertigo and right-shoulder disability in particular limit his physical capabilities and overall quality of life. He further claims these disabilities forced him into early disability retirement and that this contributed to his depression. At his hearing before the Board, the Veteran indicated he first noticed psychiatric problems in 1998 or 1999. He claims he lost his job due to his service-connected vertigo and right shoulder disabilities and, thereafter, his depression worsened. He claims he currently seeks treatment every three months for his psychiatric conditions. His service treatment records are negative for any evidence of a psychiatric disorder or sleep disorder. The Veteran was afforded a VA examination in December 1989, immediately after service. At the time he denied having any psychiatric symptoms. Post-service private and VA treatment records confirm a diagnosis for depressive disorder as early as 2003. In a June 2003 private treatment record, the private practitioner noted the Veteran's complaints of symptoms beginning as early as 1999. The Veteran stopped working in July 2003. In August 2003, the Veteran was hospitalized with symptoms of depression and suicidal ideation. He was diagnosed with severe, major depression with signs of psychosis. In September 2003, he was seen at a VA medical center and diagnosed with depressive disorder. Since 2003, the Veteran has received ongoing treatment both privately and by VA for anxiety, affective disorder, bipolar disorder, depression, major depressive disorder, sleep impairment, and suicidal ideation. The Veteran was again hospitalized in 2007 for depressive symptoms with suicidal ideation and diagnosed with bipolar disorder. The Veteran is currently receiving Social Security Administration (SSA) disability benefits for an affective disorder. The Veteran was afforded a VA examination in June 2009. He reported a history of depression since 1998 with increased depression in 2003 after he lost his job at the postal service. At that time, his ongoing (non-service connected) back problems and (service-connected) vertigo were the major factors leading to his unemployment. The examiner diagnosed the Veteran with major depressive disorder "secondary" to his ongoing back problems and vertigo causing physical limitations and a decrease in the overall quality of his life. The Veteran, in support of his claim, submitted statements from his private psychiatrist dated in September 2009 and July 2010. The psychiatrist stated that the Veteran's mood disorder/anxiety condition had its onset as a result of service-connected disabilities. In July 2010 his private psychiatrist specifically noted "sleep disorder, vertigo, and right shoulder condition" as the disabilities responsible for the Veteran's psychiatric diagnoses. The Board notes that there are no contrary medical opinions of record. In short, the evidence shows that the Veteran's psychiatric disability with sleep disturbance, variously diagnosed, is due at least in part to service-connected disabilities. Accordingly, service connection is warranted for this disability. ORDER The Board having determined that new and material evidence has been submitted, reopening of the claim for service connection for psychiatric disability with sleep disturbance is granted. Entitlement to service connection for psychiatric disability with sleep disturbance is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs