Citation Nr: 1326782 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-10 050A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, claimed as depression, anxiety, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder, claimed as depression, anxiety, and PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served in the Army National Guard from July 1976 until her retirement in 2004. She had active duty training from July 1976 to July 1977 and a period of active duty for training from August 20 to September 1, 1980. This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2005 decision by the RO. After reviewing the record, the Board is of the opinion that additional development of the evidence is warranted with respect to the issue of entitlement to service connection for a psychiatric disorder, claimed as depression, anxiety, and PTSD. Accordingly, that issue is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. In an unappealed rating decision, dated in February 2003, the RO denied the Veteran's claim of entitlement to service connection for PTSD and dysthymia (claimed as depression and anxiety). 2. Evidence associated with the record since the RO's February 2003 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The RO's February 2003 rating decision, which denied the Veteran's claim of entitlement to service connection for PTSD and dysthymia (claimed as depression and anxiety), is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2002). 2. New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder, claimed as depression, anxiety, and PTSD. 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 assist her in the development of the issue of entitlement to service connection for a psychiatric disorder. 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. A review of the record discloses that this is not the Veteran's first claim entitlement to service connection for a psychiatric disorder. That claim was initially denied by the RO in February 2003. Although the Veteran filed a Notice of Disagreement with that decision, her January 2005 substantive appeal was not timely Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2002). While the Veteran's January 2005 substantive appeal was not timely, it was considered an application to reopen her claim of entitlement to service connection for a psychiatric disorder. Thereafter, VA notified the Veteran of the information and evidence necessary to substantiate and complete her claim, including the evidence to be provided by her and notice of the evidence VA would attempt to obtain. VA informed the Veteran of the bases for the prior denial and advised her 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 her of the evidence necessary to support the underlying service connection claim, as well as the criteria for rating service-connected disabilities and for assigning effective dates, should service connection be granted. In this regard, the Board notes that not only is the Veteran represented in her appeal, she is an experienced Veterans' Service Officer. As such, she is, or should be, well-versed in the information and evidence necessary to substantiate a claim for service connection. Following the notice to the Veteran, VA fulfilled its duty to assist her in obtaining the evidence necessary to substantiate her claim. VA obtained or ensured the presence of the Veteran's service treatment records; excerpts from her personal journal and letters, dated from January 1977 through May 1978; records reflecting her treatment by or through Behavior Health Services, Inc. from November 2000 through October 2001; a March 2004 memorandum from her supervisor; a January 2006 report of a psychological evaluation and diagnostic testing from G. V. K., Ph.D.; and a February 2013 report of a psychological evaluation and diagnostic testing from J. R. T., Ph.D. In October 2002 and January 2003, VA examined the Veteran to determine the nature and etiology of any psychiatric disorder found to be present. The VA examiners reviewed the Veteran's medical history; interviewed and examined the Veteran; documented her medical conditions; and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations were adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); 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). Finally, the Board notes that in March 2013, the Veteran was scheduled to have a video conference with a Veterans Law Judge from the Board. However, prior to that hearing, she withdrew her request for a hearing and has not asked that it be rescheduled. Therefore, the Board will proceed as if the Veteran no longer desires a hearing before the Board. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support her claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to her 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 the Veteran's claim of entitlement to service connection for a psychiatric disorder. Analysis The Veteran contends that her psychiatric disorder is primarily the result of a series of stressful incidents in service, including relationship problems and harassment regarding her difficulty with weight control. Therefore, she maintains that service connection for a psychiatric disorder is warranted. After reviewing the record, the Board finds that since the RO's February 2003 denial of her claim, she has submitted new and material evidence to support her claim. Therefore, the claim is reopened; and to that extent, the appeal is granted. Service connection is warranted for a particular disability, when there is competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In February 2003, when the RO denied the Veteran's claim of service connection for a psychiatric disorder, evidence on file consisted of the Veteran's service treatment records; excerpts from her personal journal and letters, dated from January 1977 through May 1978; records reflecting her treatment by or through Behavior Health Services, Inc. from November 2000 through October 2001; and the reports of her VA psychiatric examinations in October 2002 and January 2003. Such evidence was negative for an established diagnosis of PTSD. It did show diagnoses of dysthymia; a history of an adjustment disorder with a depressed and anxious mood; and a generalized anxiety disorder. However, there were no findings of a nexus to any event sustained during the Veteran's National Guard service. Therefore, service connection was denied; and, as noted above, that decision 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 VA 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. Evidence added to the record since the RO's December 1986 decision includes reports of psychological evaluations and diagnostic testing from G. V. K., Ph.D. and J. R. T., Ph.D., dated in January 2006 and February 2013, respectively. Such evidence is new in the sense that it has not previously been before the VA. It is also material in that it tends to fill the deficits which existed at the time of the prior denial. That is, it suggests a nexus between the Veteran's current major depressive disorder and anxiety and relationship problems and weight problems in service. It is neither cumulative nor redundant of the evidence on file in February 2003, and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder. As such, it is sufficient to reopen the claim; and to that extent, the appeal is granted. ORDER New and material evidence having been presented, the application is granted to reopen the Veteran's claim of entitlement to service connection for a psychiatric, claimed as depression, anxiety, and PTSD. REMAND Since new and material evidence has been presented, the Board may proceed to evaluate the merits of the claim. Elkins v. West, 12 Vet. App. 209 (1999). Prior to that evaluation, however, additional development of the record is warranted. Accordingly, the case is REMANDED to the Appeals Management Center (AMC), in Washington, DC for the following actions: 1. Request the Veteran's service personnel records through official channels, such as the Adjutant General for the Minnesota Army National Guard. Such records must include, but are not limited to, records of all periods of active and inactive duty for training and her enlisted efficiency/performance reports. Also request the records associated with her retirement from service, including the date of that retirement and the reason(s) for her retirement. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). 2. Through official channels, such as the National Personnel Records Center (NPRC), request records reflecting the Veteran's treatment in service from December 2000 through her retirement. Such records must include, but are not limited to, the report of her service retirement examination. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). 3. When the actions in parts 1 and 2 have been completed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a psychiatric disorder is diagnosed, the VA examiner must identify and explain the elements supporting each diagnosis. The VA examiner must also render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that the Veteran's psychiatric disorder was first manifested in or as a result of service. If the examiner finds that the Veteran's psychiatric disorder existed prior to service, the examiner must state the basis for that finding and whether there was any increase in the underlying pathology during service beyond the natural progression of that disorder. THE EXAMINER MUST STATE HOW AND WHY HE OR SHE REACHED THE OPINION THEY DID. In so doing, the examiner must address the reports of psychological evaluations and testing in January 2006 and February 2013 by G. V. K., Ph.D. and J. R. T., Ph.D., respectively. The Veteran is advised that it is her responsibility to report for all scheduled VA examinations and to cooperate in the development of her claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). In the event that the Veteran does not report for a scheduled VA examination, a copy of the notice informing her of the date, time, and location of the examination must be associated with the claims folder. If the notice is returned by the Post Office as undeliverable, that fact must noted in writing and associated with the claims folder. 4. When the actions requested in parts 1, 2, and 3 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for a psychiatric disorder, claimed as depression, anxiety, and PTSD. If the benefit sought on appeal is not granted to the Veteran's satisfaction, she and her representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless she is notified to do so. However, she is advised that she has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs