Citation Nr: 1326863 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-31 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from October 1996 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied service connection for depression and anxiety disorder, also claimed as loss of memory, sleeping problems, and nervous trouble, on the basis that new and material evidence had not been received. The RO in St. Petersburg, Florida currently has jurisdiction of the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In an October 2002 rating decision, the RO denied the claim for service connection for depression and anxiety disorder; the Veteran did not appeal. 2. The evidence received since the October 2002 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder, to include major depressive disorder. 3. The Veteran's acquired psychiatric disorder, characterized as major depressive disorder, was incurred during active service. CONCLUSIONS OF LAW 1. The October 2002 RO decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.160(d), 20.302 (2012). 2. New and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder, to include major depressive disorder. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.159, 20.201 (2012). 3. An acquired psychiatric disorder, characterized as major depressive disorder, was incurred in active service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. New and Material Evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this case, the Veteran's initial claim for service connection for depression and anxiety disorder was denied in an October 2002 RO rating decision. The claim was initially denied because the RO found that there was no evidence of a current disability, and thus no evidence of a current disability that could be linked to military service. Within one year of the RO's October 2002 rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52. As such, the October 2002 RO rating decision became final. The evidence of record at the time of the October 2002 RO rating decision included the Veteran's service treatment records and VA treatment records. Evidence added to the record since that time includes the Veteran's September 2009 claim for service connection for major depressive disorder, sleeping problems, nervous trouble, loss of memory, and attempted suicide; as well as VA and private treatment records, including the report of the August 2011 VA examination, and the Veteran's statements. Significantly, the private treatment records include at least one psychiatric diagnosis, major depressive disorder. Thus, as the basis for the RO's original denial of service connection was that there was no evidence of a current disability, and newly received evidence includes record of a psychiatric disability, the new evidence is material. The Board notes here that the Veteran's original claim was for service connection for depression and anxiety disorder, and his most recent claim, currently on appeal, is for major depressive disorder, sleeping problems, nervous trouble, loss of memory, and attempted suicide. When a claimant makes a claim of entitlement to service connection for a psychiatric disability, he is seeking service connection for any acquired psychiatric disability regardless of how those symptoms are labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the Board has determined that new and material evidence has been received as to the Veteran's claim, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits. In this case, as discussed above, in light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The United States Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a) (2012). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Psychosis is listed as a chronic condition under 38 C.F.R. § 3.309(a). Any psychosis may thus be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, psychosis may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). However, psychosis is defined by regulation to include only brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384 (2012). The Veteran has not been diagnosed with such disorders. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. At the time of his September 2010 Notice of Disagreement (NOD), the Veteran asserted that his psychiatric condition manifested during active service, and cited his hospitalization and subsequent discharge from service. He reported that after such, he underwent medical treatment that continues to the present. The Veteran's service personnel records, specifically, his service separation form, his DD-214, indicates that he was discharged from service with a general discharge, under honorable conditions. His enlistment examination in June 1996 indicates that he presented without psychiatric abnormality and without report of a history of psychiatric symptoms. An October 1996 report indicates that the Veteran reported that he had been drinking and smoking, and had been treated for depression, with medication. His service treatment records dated in February 2000 indicate that the Veteran was hospitalized for nine days and was diagnosed with major depressive disorder, single episode, moderate, and alcohol and substance abuse. At the time of his separation examination, in April 2000, the Veteran was diagnosed with major depressive disorder and alcohol abuse. He reported a history of attempted suicide, frequent trouble sleeping, depression or excessive worry, loss of memory, and nervous trouble. The physician noted that the Veteran took too many of his prescribed pills on one occasion, leading to his February 2000 hospitalization. VA treatment records dated in January 2002 indicate that the Veteran requested psychiatric evaluation, and the documents dated immediately after such indicate that the Veteran did not appear for treatment or evaluation, nor did he appear for a scheduled VA psychiatric examination. VA treatment records dated in August 2003 indicate that the Veteran was evaluated and treated for a substance abuse problem with anxiety and poor concentration and attention, with medication. His private and VA treatment records dated since that time reveal continuous treatment, with medication, for a number of psychiatric disorders and substance abuse. Significantly, in March 2012, during private treatment the Veteran was diagnosed with major depressive disorder. On VA examination, subsequent to review of the claims file and examination of the Veteran, the examiner only diagnosed the Veteran with polysubstance abuse and opined that the Veteran's mental disorder was related to substance abuse since his "pre-military time," during military service, and his "post-military time." The examiner noted the Veteran's pertinent medical history, including his psychiatric diagnoses and treatment, and his substance abuse since 1996, with related detoxification treatment. The August 2011 VA opinion is not probative evidence in the current appeal. Significantly, the examiner attributed the Veteran's mental disorder to his substance abuse, prior to, during, and since his active service. The Board can find no evidence in the record of pre-service substance abuse. Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Also, the examiner did not comment in any way upon the Veteran's in-service diagnosis of major depressive disorder. The Board notes here that while the Veteran's February 2000 diagnosis during hospitalization was major depressive disorder, single episode, moderate; by the time of his separation examination, two months later, he was diagnosed with major depressive disorder, without the limiting notation of "single episode." (Continued on the next page) After resolving all reasonable doubt in the Veteran's favor, an acquired psychiatric disorder, characterized as major depressive disorder, had its onset in service. The Veteran has a current diagnosis of major depressive disorder, and was diagnosed with the same during active service. He has demonstrated recurrent symptoms of a psychiatric disorder since his in-service diagnosis. 38 C.F.R. § 3.303(d). The Board thus finds that the evidence of record sufficiently places the onset of an acquired psychiatric disorder, characterized as major depressive disorder, during active service. Service connection is warranted. The appeal is granted. ORDER New and material evidence having been submitted, the claim for service connection for an acquired psychiatric disorder, to include major depressive disorder, is reopened; and service connection for an acquired psychiatric disorder, characterized as major depressive disorder, is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs