Citation Nr: 1331279 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 11-10 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include post traumatic stress disorder, (PTSD). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board denied reopening of the Veteran's claim in a June 2012 decision. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court), which issued a Joint Motion for Remand (JMR) in January 2013. The case was returned to the Board for further consideration. FINDINGS OF FACT 1. An August 1997 rating decision denied service connection for bipolar disorder and an August 2002 rating decision denied service connection for PTSD; the Veteran did not file a timely notice of disagreement regarding these decisions, and no new and material evidence was submitted to VA within the applicable appeal period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disability has been received since the most recent prior rating decision. 3. The Veteran does not have a current diagnosis of PTSD that meets the DSM-IV criteria. 4. Throughout the period on appeal, the Veteran has had diagnoses of schizophrenia, schizoaffective disorder, depressive disorder, and bipolar disorder. 5. The Veteran did not experience symptoms of a chronic psychiatric disability during service or continuous symptoms of a psychiatric disability since separation from service. 6. The Veteran's current psychiatric disabilities are not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The August 1997 and August 2002 rating decisions are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). 2. New and material evidence has been received since the prior final denial of a psychiatric disability service connection claim, to reopen the claim. 38 U.S.C.A. §§ 1110, 1131, 5103, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2012). 3. The criteria for service connection for an acquired psychiatric disability, to include PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this Veteran's case, the decision to reopen the claim for service connection renders moot the question of whether VCAA notice was in compliance with that aspect of the appeal. As to the service connection claim on the merits, VCAA letters provided in January 2009, January 2010, and March 2010 satisfied those notice requirements. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, private treatment records, service personnel records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). The Board acknowledges that the Veteran claims there are records located at the Pentagon, the Patent Office, the U.S. Environmental Office, and the CIA from the year 1969 related to his alleged stressors. In this regard, however, the Board observes that the Veteran's reported history, as noted by the March 2008 VA examiner, is "delusional" and "patently absurd and [has] no possible basis in fact." Accordingly, attempts to obtain such records are unnecessary. As set out below, in this decision the Board finds that there is no in-service injury or disease, including no chronic in-service symptoms of a psychiatric disability, and no in-service verifiable stressor, to which current disability could related. The Veteran's claimed in-service stressors are not credible. Because there is no in-service event to which competent medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a psychiatric disability. Therefore, obtaining a medical opinion or examining the Veteran is not warranted. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). New and Material Evidence - Psychiatric Disability The Veteran's claim to reopen involves a claim of entitlement to service connection for an acquired psychiatric disability. 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; 38 C.F.R. § 3.303. 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). The Board notes that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). VA is obligated to construe communications from the Veteran "in a liberal manner for purposes of determining whether they raise issues on appeal." Robinson v. Mansfield, 21 Vet. App. 545 (2009). Therefore, the Board construes the Veteran's claim as contemplating any of his diagnosed psychiatric disorders. A review of the record shows that a claim of service connection for bipolar disorder was originally denied in August 1997, since there was no record of treatment for it in service, or until many years after service. The Veteran did not file a notice of disagreement regarding the August 1997 rating decision. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). The Veteran also did not submit any information or evidence within one year of the August 1997 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). Additionally, a claim of service connection for PTSD was originally denied in August 2002, since it had not been diagnosed. The Veteran did not file a notice of disagreement regarding the August 2002 rating decision. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012). The Veteran also did not submit any information or evidence within one year of the August 2002 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When an appellant seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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 a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If it is determined that new and material evidence has been received, the claim must be reopened and VA may then proceed to the merits of the claim on the basis of all the evidence of record. The Court has held that there is a very low threshold for reopening claims, stating that the requirements in the regulations that the evidence "raises a reasonable possibility of substantiating the claim" should be read as enabling reopening rather than precluding it. Shade v Shinseki, 24 Vet. App. 110 (2010). In this case, the RO originally denied service connection for bipolar in August 1997, finding that no evidence showed that bipolar disorder manifested during service or is causally related to service. The RO originally denied service connection for PTSD in August 2002, finding that the evidence of record failed to show any complaint, treatment or diagnosis of PTSD in service or since discharge. Since then, the evidence includes VA treatment records reflecting health care providers considered the Veteran may have PTSD. As this was not of record at the time of the prior denials, and its absence was a basis for the prior denial, it raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for a psychiatric disability. Service Connection - Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a), including psychoses, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Psychiatric Disability The Veteran's service treatment records show no complaints, treatment, or diagnosis of a psychiatric disability. A routine review of medical records conducted by the Veteran's battalion surgeon in August 1968, revealed the Veteran had no disorder of instability that would impair his judgment or reliability. Likewise, the Veteran reported no depression, nightmares, excessive worry, frequent trouble sleeping, or nervous trouble of any sort on his August 1969 report of medical history, prepared in connection with his upcoming service separation. On the associated August 1969 report of medical examination, the Veteran was found to be psychiatrically clinically normal. The first record of any psychiatric treatment is dated in 1978. This showed an admission diagnosis of schizophrenia at the VA hospital in Dallas, Texas. The next document of record relating to the Veteran's psychiatric claim is dated January 1996. The Veteran was diagnosed with schizophrenia. Records beginning in 1997, and thereafter, narrate the Veteran's reported history that come to be characterized by a March 2008 examiner as "delusional" and "patently absurd and have no possible basis in fact, ...[consistent with] psychosis." This history involves the Veteran's claimed association with terrorists, and the CIA, his murder of terrorists and members of an international underground, and a one year lack of sleep. Later history came to include preventing missile attacks, involvement with counterfeiting, and having saved the patent for the Great White Eagle, the United States symbol from being sold to the Russians. He also claimed involvement with ex-KGB agents and Blank Panther members, and that at one point Queen Elizabeth made a statement on TV referring to him. In March 2010, the Veteran reported that he had witnessed a mess sergeant killed in a septic tank while stationed in Germany, and that he found the body. Diagnoses included schizophrenia, schizoaffective disorder, bipolar disorder, depressive disorder, and post traumatic stress syndrome. Since there is no formal, independent documentation that the events the Veteran described are anything other than an expression of his delusions, or any reasonable basis for thinking they are anything other than an expression of his delusions, the Board does not consider them to be factual. With regard to PTSD, the medical records distinguish between PTSS (post traumatic stress syndrome) and PTSD, with March 2008 records reflecting that a PTSD diagnosis would be provisional. Not having a diagnosis of PTSD, precludes an award of service connection for it, and as to a post traumatic stress syndrome, to the extent it is based on the Veteran's history as summarized above, it is accorded no probative value, since the Veteran's reported history is not considered credible. Regarding the other psychiatric diagnoses, because the Veteran's symptoms include delusions, any history he reports is not considered probative. Thus, it is necessary to rely on the medical documentation to render a decision. This shows that there were no psychiatric symptoms in service. These first appeared many years after service, and no competent evidence links them to any disease or injury in service. Given that the onset of psychiatric symptoms are demonstrated to have occurred several years after service, and the lack of any event or symptoms in service to associate with any current disability, the Board finds that a preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim that the Veteran's current psychiatric disabilities were incurred in service, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been received, a claim of entitlement to service connection for an acquired psychiatric disability is reopened. Entitlement to service connection for an acquired psychiatric disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs