Citation Nr: 1328323 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-01 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a variously diagnosed psychiatric disability. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1988 to September 1998. This matter is before the Board of Veterans' Appeals (Board) arising from May 2009 and June 2010 rating decisions of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. As will be discussed below the Veteran's claim was originally developed and adjudicated as a claim of service connection for an adjustment disorder with depression. Because the record shows additional psychiatric diagnoses, including posttraumatic stress disorder (PTSD) and social anxiety, and in light of the intervening United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it has been re- characterized as stated on the preceding page. The issue of service connection for a variously diagnosed psychiatric disability (on de novo review) is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. An unappealed December 1999 rating decision denied the Veteran service connection for an adjustment disorder with depression, finding that there was no diagnosis of such disability. 2. Evidence received since the December 1999 rating shows diagnoses of acquired psychiatric disabilities; relates to the unestablished fact necessary to substantiate the claim of service connection for such disability; and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received and the claim of service connection for a variously diagnosed psychiatric disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants in full that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless. Analysis A December 1999 rating decision denied the Veteran's claim of service connection for an adjustment disorder with depression based on a finding that that depression was not shown (no current disability). The Veteran did not appeal the decision (or submit new and material evidence in the year following) and it became final. 38 U.S.C.A. § 7105. As is noted above, the claim has since been re-characterized as one of service connection for a variously diagnosed psychiatric disability. [The Board notes that a rating decision dated July 25, 2003 again denied the Veteran's claim of service connection for a psychiatric disability (to include an adjustment disorder with depression and PTSD) based on a finding that that depression was not shown and PTSD was not related to his service. The Veteran did not appeal the decision; however, new and material evidence was submitted within one year of the decision. Specifically, on July 28, 2003, VA received a treatment record which shows a diagnosis of PTSD and notes the Veteran's report of exposure to a traumatic event in service. This evidence was not considered in the July 25, 2003 rating decision. Therefore, the July 2003 decision did not become final. 38 C.F.R. § 3.156(b).] Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "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(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The pertinent evidence of record at the time of the December 1999 rating decision included the Veteran's service treatment records (STRs) (which show that he was seen in a service health clinic with Axis I diagnosis deferred in 1995) and a December 1998 VA psychiatric evaluation report, which lists a diagnosis of adjustment disorder with depressed mood in service. The evidence received since the December 1999 rating decision includes a July 2003 VA treatment record and a report of a VA examination in December 2002 when the Veteran received a diagnosis of PTSD; VA Form 21-0781 Statement in Support of Claim for Service Connection for PTSD in which the Veteran lists alleged in-service stressors; and testimony at a June 2011 hearing when the Veteran and his representative indicated that there were VA treatment records (not associated with the file) which related his psychiatric disabilities to service. The Board finds that the evidence received since the December 1999 rating decision is new and material because it was not before agency decision-makers at that time, and directly addresses an unestablished fact necessary to substantiate the Veteran's claim of service connection for a variously diagnosed psychiatric disability. Specifically, in December 1999 the claim was denied because a psychiatric disorder was not shown. Evidence received since December 1999 shows that the Veteran has diagnoses of PTSD and social anxiety; and because, for the purposes of reopening the claim the Veteran's testimony is presumed credible, there is evidence that suggests his psychiatric disability is related to service. This evidence directly addresses the basis for the previous denial; the low threshold articulated in Shade is met. See Shade, 24 Vet. App. at 117-18. Thus, the additional evidence received is both new and material, and warrants reopening of the claim. De novo review of the claim is discussed in the remand below. ORDER The appeal to reopen a claim of service connection for a variously diagnosed psychiatric disability is granted. REMAND At the June 2011 hearing, the Veteran testified that he receives VA treatment for his psychiatric disability; however, records of all his alleged VA treatment are not associated with the claims file. Complete VA treatment records are pertinent (and may be critical) evidence to the instant claim, are constructively of record, and must be secured. 38 C.F.R. § 3.159(c)(2). The Veteran also testified that he receives private treatment for his psychiatric disability; he has not yet identified the private providers, and records of such treatment have not been sought. Records of any psychiatric evaluation or treatment are pertinent (and may be critical) evidence. VA must attempt to secure complete clinical records of any private treatment and evaluations from December 1999. 38 C.F.R. § 3.159(c)(1). At the Travel Board hearing in June 2011 the Veteran was formally notified of what was needed to substantiate his claim of service connection for PTSD. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, he was informed that he would need to show credible corroborating evidence of a stressor event in service (as combat is not shown or alleged). The Veteran's testimony and his representative's arguments concede that his alleged stressors are not capable of corroboration. Hence, the prospect of the Veteran prevailing in his claim of service connection for a psychiatric disability on the basis that he has PTSD related to a stressor event in service appears less promising than other theories of entitlement raised by the record. A close review of the record discovered an avenue of development which needs to be pursued. Specifically, STRs show that the Veteran was seen (and scheduled for follow-up at what appears to be a mental health/social service counseling clinic. The report of this visit in the record does not contain much information, but does note the Veteran should return for a follow-up visit. An Axis I diagnosis was deferred. Given the diagnoses of a psychiatric disability other than PTSD in the record, development to ascertain whether he has a diagnosis of an acquired psychiatric disability that may be related to his service/complaints therein is necessary. The STRs in the record currently before the Board do not include a report of a service separation examination. Notably, the Veteran's service personnel records may contain information pertinent to his apparent mental health problems in service, and should be secured. The case is REMANDED for the following: 1. The RO should arrange for exhaustive development to locate and secure for the record the Veteran's service separation examination report. The RO should also secure for the record complete copies of the Veteran's service personnel records. 2. The RO should ask the Veteran to identify all private providers of treatment and/or evaluation he has received for psychiatric disability since December 1999 and to provide the authorizations necessary for VA to obtain outstanding records of any such private evaluations and treatment. The RO should secure for the record copies of the complete clinical records of all evaluations and treatment from the sources identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the RO's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. The RO should also secure for the record copies of the complete clinical records of all VA psychiatric treatment the Veteran has received since December 1999 (to include treatment at the East Orange VA Medical Center and the James J. Howard Community Clinic in Brick, New Jersey). 3. When the development requested above is completed, the RO should then arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist to determine whether he has an acquired psychiatric disability that is related to service/complaints therein. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on review of the record, and examination, and interview of the Veteran, the examiner should provide an opinion that responds to the following: a. Please identify (by medical diagnosis) each acquired psychiatric disability found. b. Please identify the likely etiology for each psychiatric disability diagnosed; specifically, is it at least as likely as not (a 50% or greater probability) that such is related to the Veteran's service. For any psychiatric disability that is determined to not be related to service, please identify the etiology considered more likely. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. 4. The RO should then review the record and readjudicate the claim, to encompass all psychiatric diagnoses (in accordance with Clemons). If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs