Citation Nr: 1332307 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-14 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Fargo, North Dakota. The Board's decision below finds that new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder. The reopened claim is then remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In December 1981, the RO issued a rating decision which denied the Veteran's claim seeking service connection for a psychiatric disability. Although notified of this decision that same month, the Veteran did not timely file an appeal. 2. In November 1982, the Veteran submitted additional evidence with regard to his claim for entitlement to service connection for a psychiatric disorder. 3. By correspondence in January 1983, the RO informed the Veteran that his claim for entitlement to service connection for a psychiatric disorder had previously been denied, and that he would need to submit new and material evidence to reopen that claim. 4. Evidence received since the RO's January 1983 letter is new and material, and combined with VA assistance raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a psychiatric disability. CONCLUSION OF LAW The criteria for reopening the claim of entitlement to service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by reopening the issue of entitlement to service connection for a psychiatric disorder. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). 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). In December 1981, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for a psychiatric disability. In this decision, the RO determined that the Veteran's psychiatric disability existed prior to service and was not aggravated thereby. In November 1982, prior to the expiration of the appeal period, the Veteran submitted a statement discussing his history inservice psychiatric problems. In January 1983, the RO informed the Veteran that his claim seeking entitlement to service connection for a psychiatric disorder had been previously denied in the December 1981 rating decision. The RO also informed the Veteran that he needed to submit evidence that his psychiatric disorder was either incurred in or aggravated by his military service; and that this evidence needed to be received within one year if he was to be paid as of the date of his original claim. No evidence was received prior to October 2008, when the Veteran filed the claim to reopen the issue of entitlement to service connection for a psychiatric disability. The Board must review all of the evidence submitted since the last final action to determine whether the Veteran's claim for service connection should be reopened. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). An August 2009 VA examination for mental disorders, along with a September 2009 addendum to that examination. Following a mental status examination of the Veteran, the examination report concluded with an axis I diagnosis of delusional disorder (evident prior to military service) and an axis II diagnoses of antisocial personality disorder. In the September 2009 addendum, the VA examiner noted that the Veteran had continued to manifest variations of the same hypomanic symptoms described of him while he was in the service. The VA examiner further opined that these symptoms, by history, appear to have existed prior to his service, and that the hypomanic manifestations of the bipolar affective disorder is "less likely as not" caused by or a result of his military service. The VA examiner further noted, based upon additional consideration of the case, that the Veteran's "more correct" current axis I diagnosis is malingering. This new evidence, when considered with the old evidence of record, triggers VA's duty to assist in obtaining a supplemental medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding a standard that would require reopening if the newly submitted evidence along with the other evidence of record, combined with VA assistance raised a reasonable possibility of substantiating the claim); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the claim for service connection for a psychiatric disorder is reopened. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a psychiatric disorder is reopened, and to this extent only, the appeal is granted. REMAND The Veteran is seeking service connection for a psychiatric disorder. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). Only such conditions as are recorded in examination reports are to be considered as noted. Id. In this case, the report of the Veteran's July 1975 entrance examination listed his psychiatric status as normal. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability both preexisted and was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (emphasis added). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Although the VA examiner in August and September 2009 determined that the Veteran's current mental health problems had arisen prior to service and had not worsened therein, that examiner failed provide the factual bases for these determinations. Under these circumstances, the Board finds that a new psychiatric examination is necessary to determine whether a current psychiatric disorder preexisted his entry into military service and was not aggravated by his military service. Barr, 21 Vet. App. at 311. Accordingly, the case is remanded for the following actions: 1. Request that the Veteran identify or submit any additional pertinent evidence in support of his claim, to include all VA and non-VA medical providers who have treated him for any psychiatric disorder during the course of this appeal; and prior to his entry into military service. Based on the Veteran's response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the appellant and her attorney and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the appellant is ultimately responsible for providing information. The appellant and his attorney must then be given an opportunity to respond. 2. The Veteran must be afforded for the appropriate examination to determine the nature and etiology of any current psychiatric disorder. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner. Following a review of the evidence of record, to include the Veteran's service and post-service treatment records, as well as his lay statements of record, and a discussion of each, the examiner must provide an opinion as to the whether any previously or currently diagnosed psychiatric disorder pre-existed active service. If the examiner finds that a previously or currently diagnosed psychiatric disorder preexisted service, the examiner must state upon what factual evidence in record this finding was made. If the examiner determines that a previously or currently diagnosed psychiatric did not pre-exist military service, the examiner must provide an opinion as to whether the previously or currently diagnosed psychiatric disorder is directly related to active military service. If the examiner finds that a previously or currently diagnosed psychiatric disorder preexisted service, then the examiner must determine whether the psychiatric disorder increased in severity beyond the normal progression during active military service. If the examiner finds that a previously or currently diagnosed psychiatric disorder increased in severity beyond the normal progress during active military service, the examiner must state upon what factual evidence in the record this finding was made. If the examiner finds that a previously or currently diagnosed psychiatric disorder did not increase in severity beyond the normal progress during active military service, the examiner must state upon what factual evidence in the record this finding was made. As a previous diagnosis of antisocial personality disorder is of record, the examiner must provide an opinion as to whether the Veteran had a personality disorder during active service and, if so, whether he also had a separate psychiatric disability which was superimposed on that personality disorder during active service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs