Citation Nr: 1323912	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  09-00 103	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of service connection for an innocently acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) and bipolar disorder (claimed as disturbances of consciousness).

2.  Entitlement to service connection for a claimed innocently acquired psychiatric disorder other than PTSD and bipolar disorder (claimed as disturbances of consciousness).

3.  Entitlement to service connection for a claimed right knee condition.


REPRESENTATION

Appellant represented by:	Robert W. Gilliken, II



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The Veteran served in the United States Marine Corps from May 1984 to August 1984 and in the United States Air Force from February 1986 to January 1990.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the RO.

In November 2010, the Veteran testified at a hearing held before the undersigned Veterans Law Judge via videoconference technology from the RO.  A transcript of the hearing has been associated with the record.

In January 2011, the Board remanded the claim to the RO for further development.  

In the January 2011 remand, the Board recharacterized the Veteran's claim for loss of consciousness to a claim for service connection for an innocently acquired psychiatric disorder other than PTSD and bipolar disorder.  

Although the claim of service connection for an innocently acquired psychiatric disorder was developed and adjudicated as an original claim of service connection, the Board notes that, in a March 2005 rating decision, the RO denied service connection for depression (claimed as bipolar disorder).  

The March 2005 rating decision noted that the Veteran's service treatment records did not show treatment for psychiatric symptoms in service; therefore, the current issue was the subject of a prior final denial.  See 38 U.S.C.A. § 7103(a) (West 2002); 38 C.F.R. § 20.1100(a) (2012).

Now, in order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence.  38 U.S.C.A. § 5108 (West 2002).  For this reason, the Board recharacterized the issue as reflected on the title page.

Additionally, the Veteran's appeal originally included the issue of service connection for a claimed left inguinal hernia.  During the pendency of the appeal, in a February 2013 rating decision, the RO granted service connection for status post left inguinal hernia repair with a residual scar in the left inguinal region and assigned a noncompensable evaluation, effective on January 31, 2008.

Therefore, the appeal concerning the issue of service connection for a left inguinal hernia has been resolved.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability).

A review of the Virtual VA paperless claims processing system reveals VA treatment records dated from August 2003 to January 2013 that are pertinent to the issues on appeal.

As noted in the introduction of the January 2011 remand, the issue of service connection for tinnitus has been raised by the record, as indicated on page 7 of the hearing transcript, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  

Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action.  

The reopened claim of service connection for a claimed innocently acquired psychiatric disorder other than PTSD and a bipolar disorder and the claim of service connection for a right knee disorder are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a March 2005 rating decision, the RO denied the Veteran's claim of service connection for depression (claimed as bipolar disorder); he was notified of this action and apprised of his appellate rights, but did not file a timely appeal.   

2.  The evidence received since the March 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim of service connection for an innocently acquired psychiatric disorder.  


CONCLUSION OF LAW

New and material evidence has been received since the March 2005 rating decision that is sufficient to reopen the claim of service connection for an innocently acquired psychiatric disorder other than PTSD and bipolar disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION  

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

As will be addressed, the Board has reopened the Veteran's claim of service connection for an innocently acquired psychiatric disorder other than PTSD and bipolar disorder.  Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted.  See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. 


Law and Analysis

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  

Service connection may also 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 January 2008, the Veteran petitioned to reopen his claim of service connection for a psychiatric disorder (claimed as disturbances of consciousness).  Although the claim of service connection for an innocently acquired psychiatric disorder was developed and adjudicated as an original claim of service connection for "disturbances of consciousness," at the November 2010 hearing, the Veteran indicated that he did not lose consciousness per se, but he experienced anxiety, hyperventilation, depressed moods, mood swings, and panic attacks.  See hearing transcript, p. 11.  Therefore, the issue was recharacterized as a claim for service connection for an innocently acquired psychiatric disorder other than PTSD and bipolar disorder.  

The Board observes that the Veteran's claim of service connection for a psychiatric disorder (claimed as bipolar disorder) was previously denied by the RO in a rating decision dated in March 2005.  The Veteran was notified of that decision and apprised of his appellate rights; however, he did not submit a Notice of Disagreement or otherwise initiate a timely appeal.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. 

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence.  38 U.S.C.A. § 5108.  For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 

In the March 2005 rating decision, the RO denied the Veteran's claim of service connection for a psychiatric disorder (claimed as bipolar disorder).  In that decision, the RO found that the evidence failed to establish that a current depressive disorder was related to service.  

The evidence of record at that time included the Veteran's service treatment records and VA treatment records dated from September 2003 to October 2004.   

The RO noted that the service treatment records did not show any complaints or treatment of depression or bipolar disorder during service.  The RO also noted that the VA treatment records showed recent treatment for a depressive disorder and the consideration of bipolar disorder; however, no relationship to service was established for a psychiatric disorder.

Essentially, in the March 2005 rating decision, the RO determined that there was no evidence of a nexus, or link, between an in-service injury or disease and a current psychiatric disability.

The evidence associated with the claims file subsequent to the March 2005 rating decision includes VA treatment records dated from August 2003 to January 2013 and the Veteran's hearing testimony in support of his claim.  

The Board has thoroughly reviewed the evidence associated with the claims file since the March 2005 rating decision and finds that it constitutes new and material evidence that is sufficient to reopen the previously denied claim of service connection for a psychiatric disorder.  

A review of the Veteran's Virtual VA electronic file reveals VA treatment records dated from August 2003 to January 2013 that show psychiatric treatment for an adjustment disorder with mixed anxiety and depression; a depressive disorder, not otherwise specified; and an anxiety disorder, not otherwise specified.  

During the November 2010 hearing, the Veteran testified that he experienced anxiety, hyperventilation, depressed moods, mood swings, and panic attacks "pretty much" since service.  He also reported that he sought counseling from a chaplain and was referred for mental health treatment during service.

The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and the phrase "raises a reasonable possibility of substantiating the claim" is "enabling rather than precluding reopening."  Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

In this case, the Veteran's statements and the VA treatment records suggest that the Veteran may have a psychiatric disorder that is related to service.  There is enough evidence that would trigger VA's duty to provide an examination for the claim.  Id.

Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's claim of service connection for an innocently acquired psychiatric disorder.   


ORDER

As new and material evidence has been submitted to reopen the claim of service connection for an innocently acquired psychiatric disorder, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. 


REMAND

The Board finds additional development is needed prior to the Board's adjudication of the claims.

At the time of the Board's January 2011 remand, the Veteran was represented by Brooks S. McDaniel, an agent.  

In March 2013, Robert W. Gillikin, II, an attorney, submitted a statement notifying VA that he had been retained to represent the Veteran in this appeal.  He indicated that the Veteran was previously represented by Mr. McDaniel, who retired and transferred the claims to him for representation.  He also reported filing his "EOA" paperwork in July 2012.

There is no indication in the paper claims file, in the Virtual VA claims file, or in the Board's Veterans Appeals Control and Locator System (VACOLS) that a Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), recognizing Mr. Gillikin as the Veteran's accredited attorney, was received by VA either at the RO or at the Board. 

The Board notes that the Veteran is entitled to representation at all stages of an appeal.  38 C.F.R. § 20.600 (2012).  However, only one organization, representative, agent, or attorney may be recognized at a time in the prosecution of a VA claim.  38 C.F.R. § 14.631(e)(1) (2012).  A power of attorney may be revoked at any time.  38 C.F.R. § 14.631(f)(1) (2012).  Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by both the claimant and the individual providing representation will constitute a revocation of an existing power of attorney.  Id.  

In order to ensure the privacy of claimants' personal information and ensure that claimants for VA benefits have responsible and qualified representation, VA regulations require a valid power of attorney, executed on either VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, or VA Form 21-22a, Appointment of Attorney or Agent as Claimant's Representative, to represent a claimant before VA and to authorize VA's disclosure of information to any person representing a VA claimant.  38 C.F.R. §§ 14.626, 14.631 (2012).  

In order to be valid, the power of attorney must contain the signatures of both the claimant and the representative.  

The Veteran is hereby advised that if he wishes to appoint a representative or attorney to assist him in his appeal, he must do so by providing a valid power of attorney. 

While the claim is on remand, the RO should undertake necessary action to clarify the Veteran's representation.  As noted, in order to designate a recognized organization or individual as his or her representative, a claimant must execute a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, or a VA Form 21-22a, Appointment of Individual as Claimant's Representative.  38 C.F.R. §§ 20.602, 20.603 (2012).  

On remand, the RO should clarify the appellant's intentions with regard to representation, and associate with the claims file any appropriate documentation, to include a VA Form 21-22 or a VA Form 21-22a.

With respect to the claim of service connection for an innocently acquired psychiatric disorder, the Board notes that VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  

In this case, there is evidence that the claimed psychiatric disorder may have been manifested in service.  

During the November 2010 hearing, the Veteran testified that he was counseled by a chaplain and sought mental health treatment in February 1989, prior to separating from service.  He also testified that he had experienced anxiety, hyperventilation, depressed moods, mood swings, and panic attacks "pretty much" since service.  See hearing transcript, p. 11-12.

The Veteran's reports having a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low.  McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006).

For these reasons, the Board finds that VA examinations and medical opinions are necessary for determining the nature and likely etiology of any current psychiatric disorder.

Accordingly, the case is REMANDED for the following action:

1. The RO should take all indicated action in order to clarify, in writing, the Veteran's intentions regarding his representation in this appeal, and appropriate documentation (i.e., VA Form 21-22 or VA Form 21-22a) concerning such representation should be associated with the claims file.

2.  The RO should also take appropriate steps to obtain copies of any outstanding records referable to VA treatment dated after January 2013.  The records should be associated with the record.

The Veteran also should be notified that he may submit medical evidence or clinical records to support his claims. 

3.  The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed psychiatric disorder.  Any indicated studies, tests, and evaluations should be performed.  

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay statements. 

It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

Following a review of the entire claims folder, the examiner should identify all current psychiatric disorders.

For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the current psychiatric disability had its clinical onset in service or otherwise is due to an event or incident of the Veteran's active service.  

If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 

4.  After completing all indicated development, and any additional notification, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. 

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran has the right to submit additional evidence and argument on the 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).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals

Department of Veterans Affairs