Citation Nr: 1327663 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-17 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disorder of the arms, legs, hands, and fingers. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from October 31 to November 27, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. As will be discussed below, the claims on appeal are being reopened. The underlying claims of service connection are addressed in the remand that follows the decision below. FINDINGS OF FACT 1. By a February 1999 decision, the Board denied the Veteran's claims of entitlement to service connection for a disorder of the arms, legs, hands, and fingers and for an acquired psychiatric disorder. 2. The evidence submitted since the February 1999 Board decision is neither cumulative nor redundant of the record at the time of the prior final denial of the claims of entitlement to service connection for a disorder of the arms, legs, hands, and fingers and an acquired psychiatric disorder, and is so significant that it must be considered in order to fairly decide the merits of the claims. CONCLUSIONS OF LAW 1. A February 1999 Board decision denying claims of entitlement to service connection for a disorder of the arms, legs, hands, and fingers, and service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. Since the February 1999 Board decision, new and material evidence has been received with respect to the claim of entitlement to service connection for a disorder of the arms, legs, hands, and fingers; this claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2000). 3. Since the February 1999 Board decision, new and material evidence has been received with respect to the claim of entitlement to service connection for an acquired psychiatric disorder; this claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the current appeal, the Veteran contends that his psychiatric disorder, to include schizophrenia, and his disorder of the arms, legs, hands, and fingers were incurred during his military service. In this regard, the Board notes that review of the claims file reveals that service connection for a disorder of the arms, legs, hands, and fingers, and a psychiatric disorder were denied by the RO in a decision dated in November 1994. In April 1995, the Veteran perfected his appeal as to these issues. By a February 1999 decision, the Board denied the Veteran's claims. Notice of the denial was sent to the Veteran in February 1999. He did not appeal the decision to the United States Court of Appeals for Veterans Claims (Court). The February 1999 Board decision is therefore final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim that has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. See Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). The definition of material evidence was revised in August 2001 to require that the newly submitted evidence relate to an unestablished fact necessary to substantiate the claim and present the reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2010)]. This change in the law pertains to claims filed on or after August 29, 2001. Here, a review of the record demonstrates that, in March 2000, the Veteran, through his attorney, filed a claim to reopen the previously denied claims of entitlement to service connection for a disorder of the arms, legs, hands, and fingers as well as an acquired psychiatric disorder. In a March 2000 letter, the RO instructed the Veteran to provide additional evidence in support of his claims to reopen. In response, the Veteran's attorney submitted additional VA treatment records in June 2001. In August 2001, the RO requested additional clarification as to the issues of the claim. A second August 2001 letter informed the Veteran that his application for compensation was still being processed; an identical letter from the RO was sent to the Veteran in December 2001. In June 2004, the Veteran, through his attorney, inquired as to the pending applications. As indicated above, the RO denied the Veteran's claims to reopen in a March 2007 rating decision and this appeal followed. Accordingly, because the Veteran's claims to reopen were initiated in March 2000, the revised regulations are inapplicable to the present appeal. The regulation applicable to this case is set forth in the paragraph immediately following. New and material evidence is defined as evidence not previously submitted to agency decision-makers that bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a) (2000). According to the Court, the pertinent VA law requires that, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As indicated above, the Veteran's claim for service connection for a disorder of the arms, legs, hands, and fingers was last previously considered and denied in the February 1999 Board decision. The evidence associated with the Veteran's claims file at the time of the February 1999 decision included his service personnel records, including his DD-Form 214, his service treatment records (STRs), private and VA post-service treatment records, and statements, including RO and Board hearing testimony, provided by the Veteran in support of his claim. At the time of the February 1999 Board decision, the Veteran's report of a 'nervous' condition affecting his arms, legs, hands, and fingers was of record as well as his lay assertions and testimony of in-service manifestation of symptoms. Additionally, the Veteran's STRs contained a report of his October 20, 1974 entrance examination, which revealed that he had scars on his left lower leg, right wrist, and on the back of his left hand. The examiner did not note any disorder in the summary of defects and diagnoses section of the report, and stated that the Veteran was qualified for service. Subsequent STRs also showed that the Veteran had complaints regarding his left big toe, right leg, a cough, and bad dreams. In a November 1974 notation concerning right leg pain, it was noted that the pain was probably due to cramps and that the Veteran should utilize hot towels; he was prescribed Darvon. The record is devoid of any complaints, treatments, or diagnoses of a left leg, arm, hand, or finger disorder. In addition, there is no record of any right leg disorder at his separation from service. In fact, the Veteran was deemed physically qualified for separation from active duty, and no defects were noted in a statement dated in November 1974. Post-service medical evidence showed that the Veteran complained of left leg pain in a record dated in November 1994. The examiner noted that the Veteran had slight left hip pain on rotation and abduction, without evidence of injury. Accordingly, at the time of the February 1999 Board decision, there was no medical evidence to show that the Veteran exhibited a disorder of the arms, legs, hands, and fingers. The February 1999 Board denial of the Veteran's claim is final. See 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104, 20.1103. As explained above, the Veteran's claim for service connection may only be reopened if he submits new and material evidence. See 38 U.S.C.A. § 5108 (West 2000); 38 C.F.R. § 3.156 (2000). Therefore, the Board's inquiry will now be directed to the question of whether any additionally received evidence (i.e., after February 1999) bears upon the specific matter under consideration. After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence sufficient to reopen the claim of entitlement to service connection for a disorder of the arms, legs, hands, and fingers has been submitted. The evidence received since the 1999 Board decision includes VA and private treatment records as well as SSA records. VA treatment records dated in December 2003 documented the Veteran's report of pain and stiffness in the back of both thighs. Also, VA treatment records showed that the Veteran suffered from pain in his little fingers of the left hand following a fall at his home in December 2000; x-rays of the finger demonstrated soft tissue swelling without fracture. VA treatment records dated in November 1994 noted the Veteran's complaint of left leg aching for four days without apparent injury. A contemporaneous x-ray revealed a normal left hip. VA treatment records dated in March 1987 showed that the Veteran was hospitalized for muscle tightness and distortion of the neck and back, which was noted as potential impairment of neurological function secondary to acute dystrophic reaction. Private treatment records dated in March 2000 noted that the Veteran's hands and legs shake. Similarly, a psychological evaluation dated in December 1996 documented the Veteran's report of seizures consisting of episodes where he will "shake like I'm nervous." In a January 1987 letter, Dr. C.C. noted the Veteran's report that "he has had trouble with his nerves with his hands shaking for years, feeling a burning all over his body..." In an undated private treatment record, the Veteran reported that his legs sometimes feel weak. In sum, the VA and private treatment records document the Veteran's complaints of symptoms including pain, tightness, weakness, and shaking of the hands, arms, fingers, and/or legs. The Board finds that this evidence is "new," as it was not of record at the time of the last final denial. It is also "material" because it relates to previously unestablished pertinent facts, namely a current disability affecting the arms, legs, hands, and fingers. Specifically, the Board finds that the newly added medical records are at least suggestive of a current disability affecting the Veteran's arms, legs, hands, and fingers. The Board has considered the recent holding in Shade v. Shinseki, 24 Vet. App. 110 (2010), in which the Court held that a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is not available to corroborate it. Id. See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Accordingly, the Board finds that the newly submitted evidence must be considered to fairly decide the claim. As a result, the Board finds that the newly added medical evidence, which is presumed credible, see Justus, supra, constitutes new and material evidence. The claim of service connection for a disorder of the arms, legs, hands, and fingers is therefore reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Turning to the application to reopen a claim of service connection for psychiatric disability, the Veteran's claim was last previously considered and denied in the February 1999 Board decision. The relevant evidence of record at the time consisted of STRs, private treatment records, VA treatment records, SSA records, and the Veteran's statements including a March 1996 RO hearing transcript and a November 1998 Board hearing transcript. STRs show that the Veteran was hospitalized during service in the neuropsychiatry service of the Orlando Naval Hospital. He manifested paranoid ideation and withdrawn behavior, and claimed to have auditory hallucinations. The treatment provider noted that the Veteran "was in his second week of recruit training at the time of admission and acknowledged that he had been most distraught by his experience in boot camp and had been particularly upset by his departure from home." The treatment provider further noted that the Veteran "describes over the preceding year prior to his enlistment in the Navy a gradual sense of withdrawing from interactions with other individuals due to his preoccupation with the notion of their thinking bad things about him." The provider then reported, "[t]here is no formal preceding psychiatric history as such. He indicates that as a child he had engaged in fire setting, animal torture, and enuresis, a triad usually suggestive of sociopathy." The Veteran was diagnosed with schizoid personality, with a recommendation of administrative separation. The record also contained a report of the Aptitude Board, which found, in part, that the Veteran's condition existed prior to service, was not aggravated by service, and that he had not completed recruit training. There was also a record from the recruit Evaluation Unit that showed that the Veteran exhibited interpersonal discomfort, but that there was no evidence of psychosis, impaired reality testing, formal thought disorder, or debilitating psychoneurosis, and that psychiatric hospitalization was not indicated. Post-service treatment records showed that the Veteran was diagnosed with schizophrenia in an initial interview report prepared by an intake counselor and dated August 11, 1975. A staffing note dated August 18, 1975 stated that "he seems to fall under the category of latent schizophrenia. If this progressed to a full blown schizophrenic syndrome [he] probably would become paranoid." A note dated August 29, 1975 indicated "I think this is a fairly typical case of developing paranoid schizophrenia. It is quite possible that this can be avoided by quick chemotherapy and counseling." A VA treatment record dated in March 1987 noted that the Veteran had a history of schizophrenia. A diagnosis of controlled schizophrenia was noted in May 1990. In the February 1999 decision, the Board denied the Veteran's claim finding that his STRs showed only that he suffered from a schizoid personality disorder, which is not considered a disease or injury for VA benefit purposes. The Board therefore determined that the evidence did not show an acquired psychotic or nervous disorder that was related to the Veteran's military service. Thus, the Board denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. As indicated above, the Veteran did not appeal the Board's February 1999 decision, and the denial consequently became final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Relevant evidence received since the February 1999 decision consists of VA and private treatment records, SSA records, multiple journal articles, excerpts from the DSM-IV, and statements of the Veteran and his attorney. After a review of the entire record, and for the reasons expressed immediately below, the Board finds that additional evidence has been submitted that is sufficient to reopen the Veteran's claim. VA and private treatment records document diagnoses of schizophrenia and schizoaffective disorder. See the VA treatment records dated February 2013 and private treatment records dated March 2000. Although these treatment records are "new" insofar as they was not before the RO and/or Board at the time of the previous denials, such evidence cannot be considered "material" because it does not relate to an unestablished fact necessary to substantiate the Veteran's claim, such as whether the Veteran is diagnosed with an acquired psychiatric disorder that is related to his military service. The Board further observes that a recently added December 1996 psychological evaluation noted no Axis I diagnosis and instead indicated that the Veteran suffers from schizotypal personality disorder. Although this evidence is new, it is unfavorable to the acquired psychiatric disorder claim and thus does not provide a basis for reopening. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Nevertheless, the Veteran has submitted multiple journal articles and textbook excerpts in support of his claim, including excerpts entitled, 'Schizophrenia: Etiology and Course' and 'The Early Course of Schizophrenia and Depression,' which detail the onset of schizophrenia, including the manifestations of early symptomatology. Accordingly, although these textbook excerpts and journal articles are not specific to the Veteran, the newly added evidence suggests that symptoms similar to those manifested by the Veteran during his service were evidence of early schizophrenia. This evidence is "new," as it was not of record at the time of the last final denial. It is also "material" because it should be considered to fairly decide the claim. As a result, the Board finds that the newly added evidence, which is presumed credible, see Justus, supra, constitutes new and material evidence. Accordingly, the claim of service connection for an acquired psychiatric disorder to include schizophrenia is reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence sufficient to reopen a claim for service connection for a disorder of the arms, legs, hands, and fingers has been received; to this limited extent, the appeal is granted. New and material evidence sufficient to reopen a claim for service connection for an acquired psychiatric disorder to include schizophrenia has been received; to this limited extent, the appeal is granted. REMAND For the reasons expressed below, the Board finds that the underlying claims of service connection for an acquired psychiatric disorder and a disorder of the arms, legs, hands, and fingers must be remanded for further development. Initially, the Board notes that, in a May 2013 supplemental statement of the case (SSOC), the RO indicated it had electronically reviewed the Veteran's VA treatment records dated from August 2005 to May 2013. Although the majority of these records have been associated with the claims file, review of the record including the Veteran's Virtual VA electronic file, reveals that any VA treatment records dated from February 2013 to May 2013 have not been associated with the claims file or virtual claims file. Accordingly, the missing VA treatment records must be obtained and associated with the claims file. With respect to the reopened claims, the Veteran contends that a disorder of the arms, legs, hands, and fingers, as well as an acquired psychiatric disorder to include schizophrenia were incurred during his active military service. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As indicated above, a review of the record demonstrates that no definite diagnosis has been made with respect to the Veteran's claimed disorder of the arms, legs, hands, and fingers. Thus, there remain questions as to diagnosis and etiology of this claimed disability. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for a new VA examination should therefore be accomplished in order to address these outstanding questions with respect to the Veteran's claimed disorder of the arms, legs, hands, and fingers. As for the claimed acquired psychiatric disorder, the record suggests that the Veteran has been diagnosed with schizophrenia, schizoaffective disorder, and schizoid personality disorder. He argues that his schizophrenia had its onset during his military service. See, e.g., the November 1998 Board hearing transcript. As described in the factual background provided above, the Veteran has a rather complicated medical history. His military service was less than a month and included a neuropsychiatric hospitalization. It is unclear to what extent the Veteran had a pre-existing psychiatric disorder and, if so, the extent to which it was affected by the circumstances of his military service. Moreover, the Veteran has recently submitted textbook excerpts and journal articles in support of his contention that his schizophrenia vice personality disorder initially manifested during his brief period of military service. See representative's brief dated in May 2007. In short, there is now a question of whether the Veteran's claimed acquired psychiatric disorder is related to his military service. These medical questions cannot be answered by the Board. See Colvin, 1 Vet. App. at 175 (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These issues must be addressed by an appropriately qualified physician who should also address the textbook excerpts and journal articles submitted by the evidence in support of his contentions that his schizophrenia initially manifested during service. See Charles, supra; see also 38 C.F.R. § 3.159(c)(4) (2012) (medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Additionally, review of the record (including the Veteran's physical VA claims file as well as his Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received or undergone, including records of treatment or evaluation that the Veteran may have received at the VA Medical Center (VAMC) in Montgomery, Alabama, or any other VA facility, since February 2013. All such available documents should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of any disability affecting his arms, legs, hands, and fingers manifested by pain, burning, shaking, and weakness. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent pathology should be annotated in the examination report. Pertinent testing deemed necessary should be accomplished; the results of any such studies should be included in the examination report. Following review of the claims file and examination of the Veteran, the examiner should either diagnose or rule out a disability of the arms, legs, hands, and fingers. If any such disability is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the disability of the arms, legs, hands, and/or fingers began during or was made worse by the Veteran's period of military service-October to November 1974. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ should also make arrangements for the Veteran to be examined by an appropriate specialist for the purpose of addressing the Veteran's claimed acquired psychiatric disorder, to include schizophrenia. The Veteran's VA claims file, including a copy of this remand and the Veteran's complete service records, must be made available to the examiner. After interviewing the Veteran and reviewing the record, the examiner should accomplish the following: The VA examiner should provide an opinion as to whether the evidence of record clearly shows that an acquired psychiatric disability pre-existed the Veteran's period of active duty military service-October to November 1974. If the answer to this question is affirmative, the examiner should then provide an opinion as to whether the pre-existing acquired psychiatric disability clearly did not undergo a worsening during service. If the examiner finds that the Veteran's acquired psychiatric disability did not pre-exist his military service, he/she should provide an opinion as to whether any currently diagnosed acquired psychiatric disability had its onset during military service. In providing his/her opinion, the examiner should address the multiple textbook excerpts and journal articles submitted by the Veteran's attorney in May 2007, which are contained in the claims file. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs