Citation Nr: 1330745 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-09 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for a psychiatric disability, to include depression and schizoaffective disorder, including secondary to hepatitis C. 2. Entitlement to an initial compensable rating for hepatitis C. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from July 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for depression and hepatitis C. A February 2013 rating decision granted service connection for hepatitis C and assigned a 0 percent rating, effective October 25, 2000. Although it appears that the RO reopened the Veteran's claim for service connection for a psychiatric disorder, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a determination that may have been made by the RO. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO in March 2013. A transcript of the proceeding is of record. In May 2013, the Board received additional evidence in support of the claim without a waiver of RO review. The issues of entitlement to service connection for a psychiatric disability and entitlement to an initial compensable rating for hepatitis C are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. In a June 1994 decision, the Board denied the Veteran's initial claim for service connection for a psychiatric disorder. 2. New evidence received since the June 1994 Board decision, considered in conjunction with the record as a whole, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A June 1994 Board decision that denied service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within applicable time limits. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). A decision of the Board is final unless appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7104 (West 2002). If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). 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 C.F.R. § 3.156(a) (2012). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the newly submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). For a claim to be reopened, there need not be new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO denied the Veteran's initial claim for service connection for a psychiatric disorder in a June 1991 rating decision. The Veteran appealed the decision to the Board. In a June 1994 decision, the Board also denied the claim. The evidence of record at the time of the decision included the Veteran's service records, which did not document a diagnosis of a psychiatric disorder in service and post-service medical reports that showed treatment for a psychiatric disorder several years after discharge. Based on the evidence, the RO concluded that the Veteran did not have a psychiatric disorder as a result of his military service. Additionally, there was no indication that a psychosis was manifest to a compensable degree within one year of discharge. The Veteran was notified of the Board's decision but he did not appeal it. Therefore, that Board decision became final. 38 U.S.C.A. § 7104 (West 2002). In October 2000, the Veteran requested that his claim be reopened. The additional evidence associated with the file includes a February 2008 lay statement reporting that the Veteran did not hear voices before joining the military and that he had changed after his discharge; a July 2008 private medical statement with an opinion that the symptoms the Veteran experienced in service "were an indication of a mental condition from which he still continues to suffer;" and an April 2013 private medical statement with an opinion that the Veteran had "a chronic depression secondary to the effects of the liver damage and ongoing psychological distress from his chronic illness." The Board finds that additional evidence is new, in that the documents were not previously of record. The Board also finds that they are material because they relates to a prior basis for denial of the claim in asserting that the Veteran has a psychiatric disorder that was manifest in service or, in the alternative, was due to the service-connected hepatitis C. Solely for the purpose of determining whether to reopen the claim, the new evidence is presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thus, the Board finds that new and material evidence has been received, and the claim is reopened. To that extent only, the claim is allowed. ORDER New and material evidence has been received to reopen a claim for service connection for a psychiatric disorder. To that extent only the appeal is granted. REMAND The Veteran's claim for service connection for a psychiatric disorder, including secondary to service-connected hepatitis C, has been reopened. The allegation that the disorder is secondary to hepatitis C is new. Service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, and any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (effective October 10, 2006). Although the Veteran's claim to reopen was filed in 2000, his allegation that he had depression secondary to hepatitis C was only initially raised on the record in 2013. Therefore, the Board finds that the amended version of 38 C.F.R. § 3.310 is applicable. The July 2008 private medical statement concluded that the symptoms the Veteran experienced in service were an indication of a mental condition from which he still continues to suffer. However, there is no indication that the clinician reviewed the Veteran's file before providing that opinion and the physician did not provide a rationale. Additionally, the April 2013 private medical statement also was not shown to be based on a review of the file, did not include a rationale, and did not attach any clinical records. Therefore, the Board finds that the medical opinions are not sufficient upon which to make a decision. The Board concludes that a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran is advised that failure to report for a VA examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2012). Upon remand, ongoing VA medical records and any additional evidence to support the claim should be obtained. VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). A February 2013 rating decision granted service connection for hepatitis C and assigned a 0 percent rating from October 25, 2000. At his personal hearing before the undersigned Veterans Law Judge at the RO in March 2013, the Veteran expressed disagreement with the rating assigned. The Board finds that the transcript of the hearing constitutes a written notice of disagreement to the assigned rating. The Veteran has not been provided with a statement of the case on that issue. Where an appellant has expressed disagreement in writing with a decision by an agency of original jurisdiction, and the agency of original jurisdiction has not issued a statement of the case, the Board should remand the matter for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the Board is required to remand the issue. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case that addresses the issue of entitlement to an initial compensable rating for hepatitis C. Notify the Veteran that if he wants appellate review of that issue by the Board, he must perfect an appeal in a timely manner. 2. Contact the Veteran and request the names and addresses of all medical care providers who have treated him for a psychiatric disability since discharge from service. After securing any necessary release, attempt to obtain records that are not already in the claims file. 3. Obtain the Veteran's VA medical records dated since October 2000. 4. Then, schedule the Veteran for a VA mental disorders examination. The examiner must review the claims file and must note that review in the report. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's records and a full clinical evaluation, the examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently manifest psychiatric disability had its onset in service. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disability is proximately due to or the result of service-connected hepatitis C? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disability is aggravated beyond the normal progress of the disorder by the service-connected hepatitis C? If aggravation is found, the examiner must address the baseline level of disability before it was aggravated by any service-connected disability. 5. Then readjudicate the claim for service connection for a psychiatric disability, including secondary to hepatitis C. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs