Citation Nr: 1333027	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  13-19 620	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder.

2.  Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Adrian Jackson, Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from March to November 1977. 

This appeal to the Board of Veterans' Appeals (Board) is from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which determined that the Veteran had not submitted new and material evidence to reopen a claim for service connection for an acquired psychiatric disorder. 

In September 2013, the RO received a medical statement from a VA psychiatrist (regarding the Veteran's ongoing psychiatric treatment) and forwarded it to the Board.  A waiver of consideration by the RO did not accompany the document and the RO did not issue a supplemental statement of the case (SSOC).  See 38 C.F.R. § 20.1304(c).  In light of the decision and remand, the RO will have a chance to review these records and issue an SSOC.  

The issue of entitlement to service connection for an acquired psychiatric disorder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  In a March 1978 decision, the RO initially considered and denied the Veteran's claim for service connection for an acquired psychiatric disorder.  

2.  Since that March 1978 decision, however, military personnel reports have been submitted in support of the Veteran's claim.

3.  These additional service department records were not considered in the earlier March 1978 decision, so, according to VA regulation (38 C.F.R. § 3.156(c)), negate the need to submit new and material evidence concerning this claim to have it readjudicated on its underlying merits.


CONCLUSIONS OF LAW

1. The March 1978 rating decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012).

2.  In light of the receipt of additional relevant service department records, the issue of entitlement to service connection for an acquired psychiatric disorder is subject to reconsideration. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(c), 3.160(d), 20.200, 20.1103 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

In cases involving new and material claims, the Board initially determines whether there has been sufficient VCAA notice to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), including insofar as apprising the Veteran of the specific reasons this claim was previously denied so he would have the opportunity to respond by providing evidence that would overcome these prior deficiencies. 

The RO accordingly sent the Veteran this Kent letter in November 2011.  However, because there are official service department records that were not considered in the prior decision denying this claim, there is no preliminary requirement of submitting new and material evidence to reopen this claim.  Instead, it has to be immediately readjudicated on its underlying merits, as indicated in 38 C.F.R. § 3.156(c).  So, ultimately, there was no requirement of providing this Kent notice-although, as mentioned, it was provided nonetheless.

New and Material Evidence

The RO first considered and denied this claim in March 1978.  Although the Veteran was diagnosed with a character disorder with psychopathic traits; the RO determined that this psychiatric disorder was constitutional and/or developmental in nature, and, as such was not considered a disability under VA law.

The RO appropriately notified the Veteran of that March 1978 decision, including apprising him of his procedural and appellate rights in the event he elected to appeal that decision, but he did not.  So it became final and binding on him based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.

The Veteran filed a petition to reopen this claim in August 2011.  

When a petition to reopen is presented, a two-step analysis is performed.  The first step is to determine whether the evidence presented or secured since the last final and binding disallowance of the claim is "new and material."  See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998).  Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring the duty to assist has been satisfied.  See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc).  This second step becomes applicable only when the preceding step is satisfied.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).

The evidence that must be considered in determining whether there is a basis for reopening a claim is the evidence that has been added to the record since the last final and binding disallowance of this claim, regardless of the specific basis of that denial, so irrespective of whether it was a decision on the underlying merits of the claim or, instead, a prior petition to reopen.  See Evans v. Brown, 9 Vet. App. 273, 284 (1996).

As justification for reopening this claim, the Veteran submitted partial copies of his personnel records.  Included in these records are copies of determinations regarding his suitability for retention in military service and directly comment on his mental status.  In longitudinally reviewing the file, it does not appear these official service department records were in the file in March 1978, when the RO previously considered this claim.

According to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a) which otherwise would require new and material evidence to reopen the claim.  This includes (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of 38 C.F.R. § 3.156(c) are met; (ii) additional service records forwarded by the Department of Defense or the service department any time after VA's original requires for service records; and (iii) declassified records that could not have been obtained when the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(2) provides that such records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records and Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(3) provides that an award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previous claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim.

The RO's SOC in June 2013, however, impermissibly imposed this erroneous preliminary requirement that there be new and material evidence to reopen this claim and, in the process, cited the RO's May 2012 decision (from which this appeal ensued) as having in fact considered these additional service department records.  The RO determined there was not new and material evidence to reopen this claim and, accordingly, continued to deny it on this basis.

However, it is the earlier decision in 1978 when these additional service department records were not considered, which govern whether there has to be new and material evidence to reopen this claim.  And since this earlier decision did not consider these service department records, there does not have to be new and material evidence to reopen this claim according to 38 C.F.R. § 3.156(c), rather, it automatically has to be reconsidered on its underlying merits in light of these service department records.  See Vigil v. Peake, 22 Vet. App. 63 (2008) (holding in a case with similar facts that the Veteran's unit records provided to the RO by the United States Armed Services Center for Research of Unit Records (USASCRUR), now the Joint Services Records and Research Center (JSRRC), constituted official service department records for purposes of new and material evidence; thus requiring de novo review or reconsideration, rather than review as a claim to reopen).

This claim thus has to be remanded to the RO for consideration on its underlying merits - not instead as a petition to reopen this claim.  See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (Generally where the Board reopens a claim, but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the appellant or no prejudice would result from the Board's immediate readjudication of the claim).


ORDER

The petition to reconsider the claim of entitlement to service connection for an acquired psychiatric disorder is granted, subject to the further development of this claim on remand.


REMAND

As explained, the RO must readjudicate the claim for service connection for an acquired psychiatric disorder on its underlying merits-not instead as a petition to reopen this claim.  In regards to this claimed psychiatric disorder, post-service VA treatment records show the Veteran has been diagnosed with various psychiatric disorders (including major depression, personality disorder, schizophrenia, substance abuse disorder).  As it is shown that he was evaluated for a psychiatric disorder during service, examination and opinion are needed to determine whether any currently diagnosed psychiatric disorder is related to military service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4).  The Board notes that the RO scheduled the Veteran for a VA examination in May 2011, however, the Veteran reported that the notice letter (which is not of record) was evidentially sent to his mother's address.  The RO must send the notice to the Veteran's current address and associate a copy of the notification letter in the record, if possible or at least documentation as to where such notice letter was sent.

The record shows that the Veteran is receiving ongoing psychiatric care at the St. Louis, Missouri VA facility.  Reviewing electronic medical records from the Virtual VA, a March 2012 medical record from the St. Louis, Missouri VA Medical Center (VAMC) shows that the Veteran was treated at an Arizona VA facility.  Since these records are relevant to his claim, the Veteran should identity the Arizona facility where he received psychiatric treatment.  The clinical documentation associated with this medical care as well as current St. Louis, Missouri VAMC  treatment records must be incorporated into the record.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). 

The Veteran's service treatment records contain clinical notes indicating that the Veteran received psychiatric evaluation at the Branch Clinic at the U.S. Marine Corp Base hospital at Camp Pendleton, California in October 1977.  These records refer to character disorder with psychopathic traits; however, it is not clear if there are more detailed accounts of his evaluation.  Mental health records are often held separate from the service treatment records folder.  The M21 manual indicates that in-service mental health treatment records are separate from the general service treatment records and, therefore, must be requested separately.  See VBA's Adjudication Procedure Manual, M21-1MR, III.iii.2.A.1.  Because the Veteran, in his claim, asserts that his current mental disorders began during service, evidence of in-service mental health treatment is particularly important in this case.  Under 38 C.F.R. § 3.159(c)(2), VA has a duty to assist the Veteran by obtaining records such as these, which are in the hands of a Federal department or agency.   

Accordingly, this claim is REMANDED for the following additional development and consideration:

1.  The RO should take all possible steps to attempt to obtain relevant service personnel and treatment records.  Contact the National Personnel Records Center and request any separately stored mental health clinic records during the Veteran's service, including but not limited to records from the Branch Clinic at Camp Pendleton, California, dated in November 1977. 

2.  The Veteran should be asked to provide the names, addresses, and approximate dates of treatment of all health care providers that have treated his psychiatric disabilities.  When the requested information and any necessary authorizations have been received, the RO should request legible copies of all pertinent clinical records that have not been previously obtained, including treatment records from the St. Louis, Missouri VAMC and the unidentified Arizona VA facility noted in the March 2012 medical record from the St. Louis, Missouri VA Medical Center VAMC.  

3.  After obtaining these records, schedule the Veteran for a VA psychiatric examination to identify and, if possible, reconcile all psychiatric diagnoses to date, and to determine the etiology of such.  The examiner should identify all current psychiatric diagnose and comment on the likelihood (very likely, as likely as not, or unlikely) that any current psychiatric disorder was incurred in or aggravated by the Veteran's military service. 

In regards to the character disorder (since considered developmental in nature), determine whether it clearly and unmistakably preexisted the Veteran's service, and if so, the likelihood (very likely, as likely as not, or unlikely) that any of the several additional diagnoses since service are indication of disability superimposed upon the character disorder and, in turn, the result of his military service or, instead, more likely the result of other unrelated factors. 

All diagnostic testing and evaluation needed to make these important determinations should be performed.

It is imperative the designated examiner review the claims file, including a complete copy of this remand, for the pertinent medical and other history.

The Veteran is hereby advised that failure to report for this scheduled examination, without good cause, may have detrimental consequences on this pending claim.  38 C.F.R. § 3.655.

4.  Then readjudicate the claim in light of the additional evidence.  If the claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 

The Veteran has the right to submit additional evidence and argument on the matter or 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).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs