Citation Nr: 1327669 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-40 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for degenerative disc disease, cervical spine. 2. Whether new and material evidence was received to reopen a claim for entitlement to service connection for hypothyroidism. 3. Whether new and material evidence was received to reopen a claim for entitlement to service connection for epilepsy. 4. Whether new and material evidence was received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Whether new and material evidence was received to reopen a claim for entitlement to service connection for bipolar disorder. 6. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1987 to July 1992. Service records show he had additional Army service ending in December 1985 which is unverified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that an initial claim of entitlement service connection for PTSD should also be read as including other psychiatric disorder diagnoses reasonably raised by the symptoms described and all information obtained in support of the claim. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. A May 2003 rating decision denied entitlement to service connection for cervical spine degenerative disc disease, hypothyroidism, epilepsy, PTSD, and bipolar disorder; the Veteran was properly notified of the decision but did not appeal. 2. Evidence added to the record since the May 2003 rating decision does not raise a reasonable possibility of substantiating the claims for service connection for cervical spine degenerative disc disease, hypothyroidism, and epilepsy. 3. Evidence added to the record since the May 2003 rating decision does raise a reasonable possibility of substantiating the claims for service connection for PTSD and bipolar disorder. CONCLUSIONS OF LAW 1. New and material evidence was not received and the claims for entitlement to service connection for cervical spine degenerative disc disease, may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence was not received and the claim for entitlement to service connection for hypothyroidism may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. New and material evidence was not received and the claim for entitlement to service connection for epilepsy may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. New and material evidence was received and the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. New and material evidence was received and the claim for entitlement to service connection for bipolar disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing notice of the duties to notify and assist claimants in substantiating a claim it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. The Veteran was provided notice as to these matters by correspondence dated in September 2006. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, VA treatment records, Social Security Administration (SSA) records, a March 2008 service department report, and the Veteran's statements and testimony in support of his claims. Further attempts to obtain additional evidence would be futile. VA has no duty to provide a medical examination when a veteran has not presented new and material evidence to reopen a final claim. 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(iii) (2012). No new and material evidence was received in this case as to the cervical spine degenerative disc disease, hypothyroidism, and epilepsy issues. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate these claims would not cause any prejudice to the appellant. New and Material Evidence Claims Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition under 38 C.F.R. § 3.309(a) during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, a May 2003 decision denied entitlement to service connection for cervical spine degenerative disc disease, hypothyroidism, epilepsy, PTSD, and bipolar disorder. It was noted that the Veteran failed to report for scheduled VA examinations, that the medical evidence did not relate his cervical spine degenerative disc disease to treatment he received for a neck injury in service, that there was no evidence of radiation exposure in service and no evidence of hypothyroidism or epilepsy during or within one year of service, that service records included no awards indicative of combat and the medical evidence did not relate PTSD to service, and that the evidence did not include a diagnosis of bipolar disorder. The Veteran was notified of the decision, but did not appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The evidence added to the record since May 2003 includes the Veteran's statements and testimony in support of his claims, SSA records, a March 2008 service department report, and VA treatment reports. VA treatment records note a history of cervical spine degenerative disc disease, hypothyroidism, and epilepsy/seizure without opinions as to etiology. The March 2008 service department record noted there were no records that the Veteran was exposed to radiation. VA and SSA records received since May 2003 show the Veteran received diagnoses of PTSD and bipolar disorder and include his reported stressors of having two or three close friends killed during Operation Desert Storm and having witnessed horrific battlefield scenes. At his March 2011 hearing he reported having experienced anti-aircraft fire while flying on a B-52 bomber and having witnessed the deaths of an Arab family in a religious dispute at a base gate. He stated that he had experienced seizure episodes in approximately 2001 he believed might have been related to his medications, but that he had not had any seizures in many years. Based upon the evidence of record, the Board finds that the evidence received since the May 2003 rating decision as to the cervical spine degenerative disc disease, hypothyroidism, and epilepsy claims does not raise a reasonable possibility of substantiating the claims. The evidence obtained is essentially cumulative of the evidence previously considered and there is no indication that the newly obtained evidence could, if the claim were reopened, reasonably result in substantiation of the claims. There is no new evidence relating cervical spine degenerative disc disease to treatment the Veteran received for a neck injury in service and no new evidence of radiation exposure in service or evidence of hypothyroidism or epilepsy during or within one year of service. Therefore, the claims for entitlement to service connection as to these issues may not be reopened. The Board finds, however, that the new evidence as to the PTSD and bipolar disorder claims is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claims. The evidence includes diagnoses of bipolar disorder not of record at the time of the May 2003 decision and additional information concerning traumatic events in service that, if verified, could substantiate his PTSD claim. Therefore, these claims must be reopened. ORDER New and material evidence was not received to reopen a claim for entitlement to service connection for degenerative disc disease, cervical spine; the appeal is denied. New and material evidence was not received to reopen a claim for entitlement to service connection for hypothyroidism; the appeal is denied. New and material evidence was not received to reopen a claim for entitlement to service connection for epilepsy; the appeal is denied. New and material evidence was received to reopen a claim for entitlement to service connection for PTSD; to this extent the appeal is granted. New and material evidence was received to reopen a claim for entitlement to service connection for bipolar disorder; to this extent the appeal is granted. REMAND VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search. 38 C.F.R. § 3.159(c)(2). For PTSD claims VA law provides that service connection "requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. . . ." 38 C.F.R. § 3.304(f) (effective before and after July 13, 2010). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) as the governing criteria for diagnosing PTSD. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (effective from July 13, 2010). In this case, the Veteran contends that he has an acquired psychiatric disorder as a result of active service. He testified in March 2011 that he had first been treated for a psychiatric disorder in 1995 and that he did not believe the records of that private treatment had been provided to VA. He also reported having experienced anti-aircraft fire while flying on a B-52 bomber and having witnessed the deaths of an Arab family in a religious dispute at a base gate. Newly obtained VA records show he was treated for PTSD in 2001 and that he reported stressors at that time including having two or three close friends killed during Operation Desert Storm and having witnessed horrific battlefield scenes during his service in Iraq. In light of the evidence of record and revised VA regulations, the Board finds that additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issue remaining on appeal. He should be specifically requested to provide additional information concerning his private psychiatric treatment in 1995. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All efforts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Request that the Veteran provide additional, specific information concerning his claimed stressors during service in Iraq during Operation Desert Storm. He should be notified that he must cooperate fully and must provide information sufficient for a records custodian to conduct a search. Upon receipt of information sufficient to identify and locate any existing records, appropriate efforts should be taken to verify his claimed stressors. All efforts to procure records should be documented in the file. 3. Verify the Veteran's Army service ending in December 1985 and obtain service treatment and personnel records associated with that period of service. All efforts to procure records should be documented in the file. 4. Following completion of the above, schedule the Veteran for a VA mental disorders examination conducted by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a present psychiatric disorder, including PTSD and/or bipolar disorder, was incurred as a result of service, a verified event during service, or a fear of hostile military or terrorist activity. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. After completion of the above and any additional development deemed necessary, the issue remaining on appeal should be reviewed with consideration of all evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs