Citation Nr: 1328169 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 11-30 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for left wrist disability, to include as secondary to service-connected left shoulder disability. 3. Entitlement to service connection for left elbow disability, to include as secondary to service-connected left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to August 1973 and from June 1975 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction of this case belongs to the RO in Fargo, North Dakota. In June 2012 the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Pertinent evidence was received contemporaneously with the Veteran's June 2012 Board hearing. The Veteran has waived initial RO consideration of this evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for left wrist disability and left elbow disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An October 1979 RO decision denied service connection for an acquired psychiatric disorder (identified as hyperventilation syndrome with anxiety). 2. Evidence added to the record since the October 1979 RO decision, considered in conjunction with the record as a whole, is new, relates to an unestablished fact necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the Veteran's claim for service connection for an acquired psychiatric disorder. 3. A VA psychologist has linked the Veteran's anxiety disorder and dysthymic disorder to his active service. CONCLUSIONS OF LAW 1. The October 1979 RO decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). 3. Service connection for an acquired psychiatric disorder (anxiety disorder and dysthymic disorder) is warranted. 38 U.S.C.A. §§ 1110, 1131 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable decision to reopen and grant the Veteran's claim of service connection for an acquired psychiatric disorder, any deficiency as to VA's duties to notify and assist, as to that issue, including Kent v. Nicholson, 20 Vet. App. 1 (2006), is rendered moot. New & Material Evidence Pursuant to 38 U.S.C.A. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C.A. § 5108, which indicates that "[i]f 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." Therefore, once a Board decision becomes final under section 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7104; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 C.F.R. § 3.105. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court of Appeals for Veterans Claims (Court) indicated that new and material evidence could be found where the new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. An October 1979 RO decision denied service connection for hyperventilation syndrome with anxiety. Rather than suffering from an acquired psychiatric disorder, the RO essentially determined that the Veteran's in-service problems with anxiety and hyperventilation represented a personality disorder, which was a "constitutional or developmental abnormality and not recognized as a disability under the law." Reference was also made to the Veteran's history of in-service drug abuse. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of the rating decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). The October 1979 rating decision thereby became final. Subsequent to the October 1979 RO denial, the claims file includes VA records, including a September 2010 VA examination that diagnosed the Veteran as having dysthymic disorder and anxiety disorder, not otherwise specified. The examiner also attributed the Veteran's anxiety disorder and dysthymic disorder to the problems that he had with anxiety and drugs in service. The Board thus finds that the evidence of linking current psychiatric disability to service pertains to an unestablished fact necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claim. In short, the Board finds that new and material evidence has been received to reopen the claim. Merits Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition 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). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may 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). In addition, if a veteran had active and continuous military service for 90 days or more, certain chronic diseases, including psychoses, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish a right to compensation for a present disability, a Veteran must 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In considering the merits of the claim, the Board observes that a service treatment record from the Veteran's first period of service dated in August 1972 reveals that the Veteran reported blackouts and was evaluated by neurology and psychiatry. The provisional diagnoses included anxiety attacks and personality disorder. A January 1973 treatment record noted questionable anxiety attacks. A psychiatric disability was not noted on the Veteran's July 1973 service separation examination. An October 1973 VA examination conducted between the Veteran's two periods of active service noted a negative psychiatric history. The Veteran's June 1975 service entrance examination for his second period of service noted no psychiatric disability. However, from May 1976 until he left service in January 1978, he was seen on at least seven different occasions for recurring complaints of headaches, dizziness, sleeplessness, and anxiety. He was typically diagnosed as having hyperventilation syndrome with anxiety and frequently prescribed Valium. A January 1978 service examination report indicated that the Veteran had excessive anxiety. The Veteran specifically indicated that he had depression or excessive worry and nervous trouble on the corresponding Medical History Report, and anxiety and depression "brought on by stress" was noted. The Veteran's June 1978 service separation examination report indicates that the Veteran's psychiatric system was clinically evaluated as normal. The Veteran specifically indicated that he had depression or excessive worry on the corresponding Medical History Report, and situational anxiety was noted. Post-service the Veteran is shown to have a long history of mental illness and substance abuse. An August 1979 VA discharge summary noted that the Veteran was diagnosed with anxiety attacks associated with hyperventilation as well as multiple drug abuse. The Veteran noted that the "attacks" were more frequent when he was under stress and increasingly anxious. Notes dated from June 1980 to January 1981 VA indicate that the Veteran was treated for approximately six months for substance abuse, and that major depression was noted among the diagnoses. A May 1982 VA treatment record noted depressive diathesis with a history of alcoholism. VA records dated in June 1982 and October 1982 noted that the Veteran complained of depression. A private medical record dated in July 1998 noted that the Veteran had been on psychiatric medications for nearly 18 years. The Veteran underwent a VA psychiatric examination in September 2010. After reviewing the claims file, interviewing the Veteran, and conducting a mental status evaluation, the examiner diagnosed dysthymic disorder as well as anxiety disorder. He also determined that the Veteran's depression and anxiety were at least as likely as not related to the Veteran's military service. Reference was made to the stressful circumstances of his active service and how it manifested in the Veteran's in-service problems with anxiety and drug use. At his June 2012 Board hearing the Veteran stated that he became depressed during his second period of service while stationed at Ft. Sill. He would normally seek mental health treatment during service when he had an episode of hyperventilation. The Veteran stated that following service he sought treatment for mental heath problems at VA in 1979 or 1980. The Veteran also indicated that his left shoulder condition "bummed me out." He attributed his prior drinking and drug use to his depression but indicated that he had been sober for 32 years. The Veteran indicated that he sought treatment for his psychiatric problems from 1979 to 1984 at VA, and then did not seek treatment again until the 1990s due, in part, to a lack of funding. After a review of the evidence of record, the Board finds that service connection for dysthymic disorder and anxiety disorder should be granted. Considerable attention is given to the September 2010 VA examiner's opinion. That examiner's conclusion is supported by the record, in that treatment records from the Veteran's second period of service clearly reveal that he complained of problems with anxiety and depression. As for its probative value, the September 2010 VA opinion contained an extensive and detailed review of the Veteran's medical records, including specific references to multiple clinical findings from the Veteran's service treatment records and VA psychiatric treatment records dated shortly following the Veteran's service. The September 2010 VA examiner's opinion is uncontradicted. The Board acknowledges that the September 2010 VA examiner referenced certain in-service "stressors" that are not all verified by the evidence of record. The Board notes, however, that the September 2010 VA examiner's favorable opinion is based, in large part, on the fact that complaints of depression and anxiety were noted in service; the reason or reasons for the anxiety or depression experienced by the Veteran during service is not overly relevant in this specific case. Other factors leading to the Board's decision in this case include statements that have been submitted in support of the Veteran's claim. For example, in a March 2011 statement the Veteran's brother (BK) indicated that he could detect a change in the Veteran's behavior both during and after his military service. In the same manner, in a June 2011 statement the Veteran's sister (NW) stated that her first recollection of the Veteran's return to civilian life was that the Veteran had seemed disoriented and mentally fragile. These statements, in the Board's view, support the Veteran's assertions in this case and also bolster the opinion of the September 2010 VA psychologist who linked the Veteran's psychiatric disability to his active service. Further lending support to the Board's decision in this case is the fact that anxiety and depression were noted during service, shortly thereafter, and basically continuously to the present. While a psychosis was not diagnosed, and the granting of service connection for a psychosis under a theory of continuity of symptoms since service is not for application, the Board finds nevertheless that this factor tends to lend credibility to the Veteran's statements and those submitted in support of his claim. The Veteran has also provided a plausible basis for the lack of treatment records dating from 1984 to the 1990s. Based on the foregoing, at the very least, the evidence is in equipoise as to whether the Veteran's psychiatric disability is related to his active service. Resolving any doubt in the Veteran's favor, service connection for dysthymic disorder and an anxiety disorder is warranted. See 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been submitted in order to reopen a claim of entitlement to service connection for acquired psychiatric disorder; and, the claim is reopened. Service connection for an acquired psychiatric disorder (dysthymic disorder and an anxiety disorder) is granted. REMAND The Veteran seeks service connection for left wrist and left elbow disability, to include as secondary to service-connected left shoulder disability. In addition to direct serve connection, secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In November 2010 the Veteran underwent a VA peripheral nerves examination that was to address the medical matters raised by the left wrist and left elbow issues. That examination was not adequate. Specifically, while he indicated that neither the left wrist nor the left elbow disabilities were caused by the Veteran's left shoulder disability, the November 2010 VA examiner did not comment as to whether the Veteran's left wrist disability or left elbow disability were aggravated (worsened) by his service-connected left shoulder disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that the Veteran should be afforded a VA examination that addresses the medical matters raised by these issues. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AOJ should obtain and associate the Veteran's complete VA treatment records since May 24, 2012. 2. The Veteran should be scheduled for the appropriate VA examination(s) regarding the claimed left wrist and left elbow conditions. The examiner must be provided the Veteran's claims file for review, and any indicated studies must be completed. Following examination of the Veteran and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has left wrist or left elbow disability that (a) had its onset in service or within one year of service discharge, (b) is etiologically related to his active service, (c) is proximately due to service-connected left shoulder disability, (d) was aggravated (made worse) by service-connected left shoulder disability. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should then, based on all the evidence of record, readjudicate the issues of entitlement to service connection for left wrist disability, to include as secondary to service-connected left shoulder disability, and entitlement to service connection for left elbow disability, to include as secondary to service-connected left shoulder disability. If any of the benefits sought are not granted, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. 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). 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs