Citation Nr: 1326487 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 08-20 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a chronic acquired psychiatric disorder. 2. Entitlement to an increased evaluation above 10 percent for a chronic skin disorder (diagnostically rated a dermoidal fibrosis). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from December 1977 to December 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 Department of Veterans Affairs (VA) rating decision which, inter alia, denied the Veteran's application to reopen his previously denied claim of entitlement to service connection for a chronic acquired psychiatric disability for failure to submit new and material evidence, and denied his claim for a rating increase above 10 percent for a service-connected chronic skin disorder (diagnostically rated as dermoidal fibrosis). The case was brokered to the Togus, Maine, VA Regional Office, which rendered the May 2007 rating decision now being appealed. The Pittsburgh, Pennsylvania, VA Regional Office (RO) is the agency of original jurisdiction in the current appeal. In March 2010, the Veteran, accompanied by his representative, presented oral testimony, arguments, and evidence in support of his claim before the undersigned traveling Veterans Law Judge sitting at the RO. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. In June 2010, the issues currently on appeal were remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary and procedural development. Following this development, the claims of new and material evidence to reopen the claim for service connection for a chronic psychiatric disorder and entitlement to a rating increase above 10 percent for dermoidal fibrosis were denied in a November 2011 rating decision/supplemental statement of the case. The case was returned to the Board in December 2011 and the Veteran now continues his appeal. (The Board notes at this juncture that its June 2010 remand and the subsequent statement of the case of November 2011 mischaracterized the rating issue as entitlement to a rating increase in excess of 30 percent for dermoidal fibrosis. A review of the claims file indicates that the Veteran's service-connected skin disorder has been rated at 10 percent disabling and no higher throughout the entire pendency of the claim.) For the reasons that will be discussed in detail in the REMAND portion of this decision, the issue of entitlement to a rating increase in excess of 10 percent for dermoidal fibrosis is REMANDED to the RO/AMC. The appellant will be notified by VA if any further action is required on his part. FINDINGS OF FACT 1. The RO denied the Veteran's original claim of entitlement to service connection for a chronic acquired psychiatric disorder (claimed as a mental condition) in a final April 2000 rating decision. 2. Evidence received since the April 2000 rating decision that denied the Veteran's claim of entitlement to service connection for a chronic acquired psychiatric disorder is either duplicative of evidence previously submitted and considered on the merits or the evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate this claim. CONCLUSION OF LAW The criteria for reopening the claim of entitlement to service connection for a chronic acquired psychiatric disability have not been met, and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the new and material evidence claim on appeal, under the Veterans Claims Assistance Act of 2000, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The pertinent law, regulations, and caselaw have held that VA must at least inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice should be provided prior to initial adjudication of the claim. In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen service connection claims, the claimant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior final denial. The current appeal pertains to the Veteran's application to reopen his previously denied claim for service connection for a chronic acquired psychiatric disorder, which was received by VA in August 2006. In response, VA sent to the Veteran a letter dated in December 2006, which provided notice of the elements of service connection and new and material evidence and the reasons for the prior final denial. He was also notified of the evidence VA would obtain and the evidence he was expected to obtain, as well as provided information as to how VA determines disability rating and effective date. Thereafter, the application to reopen the psychiatric disorder claim was adjudicated in a May 2007 rating decision, which is now on appeal to the Board. The Board thus finds that there is no error in the timing of the notice and that the notice criteria of Kent have been satisfied. The Board also concludes VA's duty to assist has been satisfied with respect to the new and material evidence claim on appeal. The claims file includes all evidence associated with the record at the time of the prior final rating decision of April 2000 that denied the original claim for service connection for a chronic acquired psychiatric disorder (claimed as a mental condition). This evidence includes the Veteran's personal contentions, his service treatment records, and post-service VA medical records dated 1991 - 1994. Furthermore, all evidence dated since the prior final rating decision of April 2000 that the Veteran has identified as relevant to his application to reopen his psychiatric disorder claim has been obtained and associated with his claims folder, including his records of examination and treatment from private, VA, and Social Security Administration (SSA) sources for the period from 1998 - 2011. The Veteran has also been afforded ample opportunity to submit any additional relevant evidence in his possession or otherwise request VA to obtain specifically referenced records on his behalf. The Board also notes that to the extent that the claimant alleges that he received psychiatric treatment as early as 1982, almost immediately after leaving service, he also reports that such treatment was received at a medical facility that no longer exists and that his records of such treatment are now unobtainable. (See correspondence from Veteran dated December 2011.) Furthermore, a February 2009 VA memorandum makes the formal finding that the Veteran's alleged records of German inpatient mental health records relating to psychiatric treatment reportedly received during service at the United States Army Hospital in Berlin are unavailable for review despite exhaustive efforts to locate and obtain them. Lastly, the Board has also reviewed the Veteran's records in VA's Virtual VA electronic database and Veterans Benefits Management System, for any pertinent clinical records. VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In attempts to reopen previously denied claims for service connection, however, the duty to assist does not include provision of medical examinations or opinions, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii) (2012). The Veteran was provided with the opportunity to present oral testimony in support of his claims before the undersigned Veterans Law Judge in a March 2010 hearing. At the time of the hearing, he was accompanied by his representative and had the benefit of his advice and counsel. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) explaining fully the issues and (2) discussing the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the March 2010 Board hearing, the presiding Veterans Law Judge's questions and the oral testimony of the Veteran focused on the elements necessary to substantiate, inter alia, the Veteran's application to reopen through submission of new and material evidence his claim of entitlement to service connection for a chronic psychiatric disorder. [See transcript of March 23, 2010 Board hearing.] Thus, the Board finds that the Veterans Law Judge presiding over the March 2010 hearing has substantially fulfilled her obligations as required under 38 C.F.R. § 3.103(c)(2). Bryant, supra. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case with respect to whether new and material evidence has been submitted to reopen the claim for service connection for a chronic acquired psychiatric disability, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board will therefore proceed with the adjudication of the matter on appeal. In general, unappealed rating decisions of the RO and the Board are final. See 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002 & Supp. 2012). In order to reopen a claim there must be added to the record "new and material evidence." See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). 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. See 38 C.F.R. § 3.156 (2012). The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a) (2012). The credibility of the evidence is presumed for the purpose of reopening. See Justus v. Principi, 3 Vet. App. 510 (1992). In this regard, the Board is mindful that actually weighing the probative value and assessing the credibility of evidence is appropriate only if the Board first finds such evidence to be new and material to the service connection claim and reopens the claim for a de novo review on the merits. The Veteran served on active duty from December 1977 to December 1981. He filed his original claim for VA compensation for a psychiatric disorder in August 1999. Evidence considered at the time of this claim included his service treatment records, which show normal psychiatric examination on enlistment examination in November 1977. In June 1981, he was discovered with a bed sheet tied around his neck, threatening to jump out of a window and hang himself. He was admitted for counseling and while he presented vague suicidal ideation, he was determined to be psychiatrically normal and diagnosed with no mental disorder. Prescribed treatment was supportive counseling and he subsequently appeared to improve with a normal mental status. Separation examination in August 1981 shows that although he reported having depression and excessive worry on his medical history questionnaire and was noted to have had treatment for an earlier attempted suicide, he was found to be psychiatrically normal on examination. Post-service VA psychiatric hospitalization records show that in August 1991 the Veteran was admitted for inpatient treatment for an Axis I diagnosis of cocaine dependence and polysubstance abuse. An October 1994 VA domiciliary report shows that the Veteran entered the domiciliary as he was homeless and diagnosed on Axis I as being cocaine and alcohol dependent. None of the aforementioned records indicate that his prior military service was related to his post-service substance abuse issues. The Veteran's essential contention at the time of his original claim was that his documented suicide attempt in service was proof in itself of the onset of a psychiatric disorder that first manifested itself during active duty, thereby warranting an award of service connection for a chronic acquired psychiatric disorder. In an April 2000 rating decision, inter alia, VA considered the above evidence and arguments and denied the Veteran's claim for service connection for a chronic acquired psychiatric disorder. Notice of the denial and his appellate rights was sent to the Veteran in correspondence dated in May 2000. The claims file does not indicate that this notice was returned undelivered. Thereafter, no response was received from the Veteran within the one-year appellate period indicating any disagreement with the denial of VA compensation for a psychiatric disorder and the April 2000 decision became final. In August 2006, the Veteran filed an application to VA to reopen his previously denied claim of entitlement to service connection for a chronic acquired psychiatric disorder. Evidence submitted by the Veteran, or otherwise obtained on the Veteran's behalf by VA, in conjunction with this application includes his hearing testimony before the Board, his written statements in support of his claim, SSA records showing that the Veteran was deemed to have been disabled as of July 2002 for purposes of SSA benefits due to a chronic psychiatric disorder (characterized by SSA as an affective or mood disorder), and VA medical records dated 1999 - 2011 showing that during this period the Veteran was prescribed psychotropic medication, psychiatrically counseled and, on several occasions, hospitalized for bipolar disorder and depression. The SSA records also show that the Veteran's vocational background was in labor and construction. His oral hearing testimony of March 2010 and written statements submitted in support of his application to reopen his claim all present, in essence, his basic contention that his documented suicide attempt in service in June 1981 demonstrates that his current psychiatric disability had its onset during active duty. The Veteran also testified at his March 2010 hearing that none of his post-service psychiatric care providers informed him that they were of the opinion that his present psychiatric condition was related in any way to his period of active military service. The Board has considered the aforementioned evidence submitted since the prior final rating decision of April 2000, but finds these to be cumulative and redundant of previously considered evidence or otherwise evidence that is not new and material to the Veteran's individual claim. The Veteran's contention (as a layperson who is bereft of formal medical training and certification) that his suicide attempt in service was an indication of onset of a chronic psychiatric disability during active duty was previously considered in the April 2000 rating decision and rejected on the merits as the contemporaneous service treatment records did not objectively demonstrate that he was diagnosed with a psychiatric disorder while in the military. His resubmission of the same contention, absent any actual objective clinical opinion to substantiate it, is merely cumulative and redundant. It therefore does not constitute evidence that is new for purposes of reopening the Veteran's claim. The SSA and VA medical records relating to the period from 1999 - 2011 show clinical treatment, hospitalization, and examination for Axis I psychiatric diagnoses that include bipolar disorder and depression, but do not present any objective nexus opinion linking these Axis I diagnoses to the Veteran's military service or otherwise inferring that a relationship between his service and his psychiatric condition exists. As such, they are merely cumulative and redundant of previously considered VA clinical records from 1991 and 1994 showing that the Veteran was diagnosed with, and was receiving medical treatment for a psychiatric condition (substance abuse) but otherwise presenting no objective evidence of a nexus between his post-service psychiatric state and his period of active duty. As such, these records do not constitute evidence that is both new and material to the Veteran's claim for VA compensation for a chronic acquired psychiatric disorder. The Board finds that the evidence submitted by the Veteran since the time of the prior final rating decision of April 2000, which denied service connection for a chronic acquired psychiatric disorder (claimed as a mental condition), is not new to this claim as it is cumulative and redundant of prior records and statements that had been essentially considered on the merits in the prior final rating decision, or is otherwise not material to the Veteran's individual claim. The clinical evidence submitted also contains no objective opinion definitively linking any Axis I diagnosis to service, such that it relates to an unestablished fact necessary to substantiate this claim. Therefore, the evidence submitted does not raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (2012). In view of the foregoing discussion, the Board concludes that the evidence submitted since April 2000 is not new and material and the petition to reopen the Veteran's psychiatric disorder claim for a de novo review on the merits is denied. See 38 C.F.R. § 3.156(a) (2012). ORDER New and material evidence having not been submitted, the application to reopen the claim of entitlement to service connection for a chronic acquired psychiatric disorder for a de novo review on the merits is denied. REMAND The Veteran's service treatment records demonstrate that he was treated on several occasions for recurrent eczematous skin rashes affecting his face and groin. By rating decision of May 1995, he was awarded service connection and a noncompensable evaluation for a chronic skin disorder, which was diagnostically rated as dermoidal fibrosis. A March 2002 rating decision awarded a 10 percent evaluation for this skin disorder, rated as analogous to dermatitis or eczema under 38 C.F.R. § 4.118, Diagnostic Code 7806. The 10 percent evaluation has remained in effect since that time. The present claim for a rating increase for dermoidal fibrosis stems from the Veteran's application, which was received by VA in August 2006. Therefore, under 38 C.F.R. § 3.400(o)(2), VA must consider all pertinent evidence dated as early as August 2005, as the effective date of an increased rating award is the date of claim or date on which it is factually ascertainable that the increase in disability occurred if it is within one year prior to the date of claim. The Court has also held that in determining the present level of a disability for any increased evaluation claim, VA must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The applicable criteria to rate the current service-connected skin disorder is contained in 38 C.F.R. § 4.118, Diagnostic Code 7806, which include assessing the severity of the skin disorder based on the percentage of entire body affected, or the percentage of the exposed areas affected. In this regard, under Diagnostic Code 7806 the claimant may be assigned the next higher evaluation of 30 percent for his service-connected dermoidal fibrosis if the clinical evidence objectively demonstrates that 20 to 40 percent of his entire body or 20 to 40 percent of his exposed areas are affected by his eczema-like skin disorder, or that he requires the use of systemic therapy such as corticosteroids or immunosuppressive drugs for a total duration of six weeks or more, but not constantly, in the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). A review of the pertinent medical evidence shows that the Veteran only uses topically applied steroidal creams and medications to treat his skin disorder throughout the pendency of this claim, but that he did not require the use of systemic therapy with corticosteroids or immunosuppressives. His service-connected skin disorder was manifested by no current lesions or active scarring on VA examination in October 2006 and objectively assessed as affecting zero percent of the Veteran's entire body and zero percent of his exposed areas. On VA examination in July 2010, the service-connected skin disorder was manifested only on the Veteran's feet, but no objective assessment of the percentage of body area affected was provided. On VA examination in October 2011, the service-connected skin disorder was deemed to be even milder that when last evaluated in July 2010 and was assessed as affecting less than 5 percent of his entire body and zero percent of his exposed areas. While the clinical findings presented above would not seem to support the assignment of a rating above 10 percent for the skin disorder at issue, the Board notes that there is clinical evidence pertinent to the period of the pendency of this claim that indicates that much higher percentages of body areas were affected by the Veteran's service-connected skin disorder during episodes of flare-ups. Specifically, a July 2006 VA treatment report shows that the skin disorder was manifested by severe active rash and symptoms on his scalp and extending from his bilateral upper arms to his fingertips and dorsal surfaces and the lumbar area. A VA emergency room report shows that in February 2007, he sought emergency treatment for a generalized rash flare-up that affected his face, nose, trunk, bilateral hands, upper extremities, thighs, and lower extremities, and genitalia. A subsequent VA dermatology treatment note dated in March 2007 shows that his bilateral upper and lower extremities remained affected, manifested by dry scaly changes and hyperpigmented macules over these extremities, and thickened, pigmented scaly plaques on his hands and feet. However, no objective assessment of the actual percentages of the entire body and the exposed areas affected by the skin disorder was presented in the treatment notes. As the above findings are sufficiently detailed to permit such an objective medical assessment, the case should be remanded to the RO so that an appropriate clinician may review the above records and provide an assessment that will be adequate for rating purposes. Furthermore, the Board notes that in its remand of June 2010 it instructed the RO/AMC that, to the extent possible, the Veteran should be examined during a period when his skin disorder is undergoing a flare-up. The most recent VA examination of the Veteran's skin disorder of record was conducted in October 2011, nearly two years ago. In view of the Veteran's contention that his skin disorder is aggravated during the heat of the summer months and in view of the representative's contention that a current examination is warranted while it is still seasonally warm, the Veteran should be provided with a new VA examination to assess the severity of his service-connected dermoidal fibrosis. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Copies of updated VA and private medical records pertinent to the Veteran's treatment for a chronic skin disorder, which have not yet been associated with the evidence, should be obtained and added to the claims folder. 2. Following completion of the above, schedule the Veteran for the appropriate medical examination to evaluate the current severity of his service-connected chronic skin disorder (diagnostically rated as dermoidal fibrosis). To the extent possible, the examinations should be conducted during the warm weather months and/or during an active flare-up period of elevated skin symptoms. The Veteran's claims file should be provided to the examiner for review thereof in conjunction with the examination. The examiner should indicate in the examination report that such a review was conducted. The examiner should also provide opinions addressing the following questions: (a.) At the time of this examination, is more than 40 percent of the Veteran's entire body or more than 40 percent of his exposed areas affected by his service-connected skin disorder, or; does the Veteran's service-connected skin disorder require constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period or during any 12-month period since August 2005? (b.) At the time of this examination, is more than 20 to 40 percent of the Veteran's entire body or 20 to 40 percent of his exposed areas affected by his service-connected skin disorder, or; does the Veteran's service-connected skin disorder require systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period or during any 12-month period since August 2005? (c.) At the time of this examination, is at least 5 percent, but less than 20 percent, of the Veteran's entire body, or at least 5 percent, but less than 20 percent, of his exposed areas affected by his service-connected skin disorder, or; does the Veteran's service-connected skin disorder require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period or during any 12-month period since August 2005? (d.) At the time of this examination, is less than 5 percent of the Veteran's entire body or less than 5 percent of his exposed areas affected by his service-connected skin disorder, and; does the Veteran's service-connected skin disorder require no more than topical therapy during the past 12-month period or during any 12 month period since August 2005? (e.) Based on the examining clinician's assessment of the findings presented during the recorded episodes of elevated symptomatology associated with the Veteran's service-connected skin disorder during VA treatment in July 2006, February 2007, and March 2007, what is the percent of the Veteran's entire body, and what is the percent of his exposed areas affected by his skin disorder's flare-up during each of the aforementioned periods? Pertinent documents in the claims folder must be reviewed by the VA examiner, who should provide a complete rationale for any opinion given, reconciling any conflicting medical opinions rendered. If the examiner cannot provide an opinion without resorting to speculation, he/she should so state in his report and discuss why this is so. Any additional examinations, tests, or studies necessary for an adequate opinion should be conducted. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim of entitlement to an increased evaluation above 10 percent for his service-connected chronic skin disorder (diagnostically rated as dermoidal fibrosis) should be readjudicated following review of all relevant evidence associated with the claims file. If the maximum benefit remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the claim should be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs