Citation Nr: 1333500	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  10-36 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability.
 
2.  Entitlement to service connection for a psychiatric disability.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Jacob Dworkin, Associate Counsel




INTRODUCTION

The Veteran served on active duty from December 1970 to November 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

The issue of entitlement to service connection for a psychiatric disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDINGS OF FACT

1.  An unappealed March 1992 rating decision denied service connection for neuropsychiatric disorder, dysthymia, personality disorder, emotion instability, and depressive reaction in.

2.  Evidence received since the March 1992 rating decision that was not of record at that time and that is not cumulative or redundant of evidence of record at that time, relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a psychiatric disability and raises a reasonable possibility of substantiating that claim.


CONCLUSIONS OF LAW

1.  The March 1992 RO rating decision that denied service connection for neuropsychiatric disorder, dysthymia, personality disorder, emotion instability, and depressive reaction is final.  38 U.S.C.A. § 7105(c) (West 2002).

2.  New and material evidence having been submitted, the criteria for reopening a claim of entitlement to service connection for psychiatric disability have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. § 3.303(a) (2013).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of that disease during service.  38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). 

A March 1992 rating decision denied service connection for a psychiatric disability.  The Veteran did not appeal that decision and it became final.  38 U.S.C.A. § 7105(c) (West 2002).  A request to reopen was received by the RO in January 2009, the RO denied a claim for service connection for a psychiatric disability in a March 1992 decision.  The Board has considered whether the Veteran's currently diagnosed general anxiety disorder and major depressive disorder are distinctly different diagnosis from his 1992 VA examination that determined that the Veteran had a nervous disorder also characterized as a neuropsychiatric disability.  Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).  Given the several descriptions of his condition in 1992, the Board concludes that the Veteran's current general anxiety disorder and major depressive disorder are not distinct diagnoses, different from what was diagnosed in 1992.  Therefore, this is a request from the Veteran to reopen a finally denied claim.

Generally, once the RO or the Board denies a claim and the denial becomes final, the claim cannot be reviewed on the merits.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002).  Therefore, the Board must first make a determination whether the claim may be reopened for review.

Once the RO makes a determination as to a claim, it must mail to the claimant, and representative if there is one, notice of the decision with notice of the claimant's procedural due process and appellate rights.  38 U.S.C.A. § 7105(b)(1) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.25 (2013).  An appeal of an RO decision to the Board is initiated by the filing of a notice of disagreement.  38 U.S.C.A. § 7105(a) (West 2002).  The notice of disagreement must be filed within one year from the date of mailing of result of the initial determination.  38 U.S.C.A. § 7105(b)(1) (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2013).  If a timely notice of disagreement is not filed, the decision becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with 38 U.S.C.A. § 7105(c) (West 2002). 

The exception is that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108 (West 2002).  New and material evidence is evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013).  In determining whether evidence is new and material, the credibility of the evidence in question is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The Veteran first filed for VA disability compensation in May 1991, claiming entitlement to service connection for psychiatric disabilities.  The Veteran asserted that he had depression and suicidal tendencies that first manifested during active duty service.  The Veteran, through his statements and service medical records, indicated that he had two suicide attempts in October 1971 and May 1972, both involving self-inflicted wounds to his wrist.

In March 1992, the RO denied service connection for psychiatric disabilities on the basis of a February 1992 VA medical opinion that concluded that the Veteran had a pre-existing psychiatric disability before service.  In March 1992, the RO sent notice to the Veteran and his representative of that decision and of his procedural and appellate rights.  The RO did not receive any communication regarding that decision within one year of the mailing of notice of that decision and that decision became final.  38 U.S.C.A. § 7105(c) (West 2002).

Following the March 1992 RO rating decision, VA received a claim of entitlement to service connection for a psychiatric disability identified as anxiety in January 2009.  The Veteran submitted VA and private treatment records that showed treatment for suicide attempts and a private psychologist diagnosis of general anxiety disorder.  The Veteran then submitted a December 2009 letter from his private physician concerning his mental condition that explained his current condition and diagnosis of generalized anxiety disorder.  Finally, the Veteran submitted two signed statements in August 2010 from his mother and sister.  Both letters stated that the Veteran had no psychological issues before he entered the Navy and first experienced those disabilities once he started his service.

The Board finds that the statements from the Veteran's mother and sister are new and material with regard to his claim of entitlement to service connection for a psychiatric disability.  The evidence is new because, as of the time of the last final denial of his claim he had not submitted any statements from his family members or others that concerned onset of his psychiatric disabilities.  The evidence is material because it related to an unestablished fact necessary to substantiate his claim, namely that his psychiatric disabilities had onset during his active service.  When presumed credible, that evidence raises a reasonable possibility of substantiating the claim because if it is shown that his psychiatric disability did not pre-exist active service and instead, manifested while in active service, the claim could be granted.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

Because new and material evidence has been submitted, the Board must reopen the claim of entitlement to service connection for a psychiatric disability.  VA must further develop the claim prior to addressing the merits of the claim.  Therefore, although the claim is reopened, the Board must remand the issue for further development.

ORDER

The claim of entitlement for service connection for a psychiatric disability is reopened, and to that extent only, the appeal is granted.


REMAND

A remand is necessary so that VA can fulfill its duty to assist the Veteran in obtaining evidence to substantiate a claim of entitlement to service connection for a psychiatric disability.  38 U.S.C.A. 5103A (West 2002 & Supp. 2013), 38 C.F.R. 3.159(c) (2013).  That duty includes assisting the Veteran in obtaining relevant evidence identified by the Veteran.  38 C.F.R. 3.159(c) (2013).

The service medical records show that the Veteran was treated for two incidents of self-inflicted wounds, in October 1971 while on board the USS Enterprise, and in May 1972 at the United States Naval Hospital, Whidbey Island, Washington.  A VA examination was conducted in February 1992, that concluded that the Veteran suffered from dysthymia, major depressive disorders, and a mild personality disorder.  The examiner concluded that those psychiatric conditions were a pre-existing condition and did not manifest in service.  The examiner and the RO in the March 1992 decision did not comment on any aggravation or worsening of the condition due to service.  

VA has a duty to provide the Veteran an examination with regard to this claim and to obtain an expert medical opinion as to whether any current psychiatric disability is related to his active service or if such disability is found to pre-exist his active service, whether that condition was not aggravated by service.  38 C.F.R. § 3.159(c)(4) (2013).

Here, there are two relevant in-service events, the October 1971 and May 1992 incidents of suicide attempts.  There is also competent evidence present in the file from the Veteran's psychologist that the Veteran has psychiatric disabilities.  There is insufficient medical evidence of record to decide this issue.  Therefore, VA has a duty to provide the Veteran with a medical examination and obtain an expert opinion.  38 U.S.C.A. 5103A(d) (West 2002), 38 C.F.R. 3.159(c)(4) (2013), McLendon v. Nicholson, 20 Vet. App. 79 (2006).  That must be accomplished on remand.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all relevant inpatient and clinical psychiatric records pertaining to the Veteran from United States Naval Hospital Whidbey Island, Washington and the USS Enterprise and associate any records with the claims file.  If the records are not obtained, and only after it is clear that further efforts to obtain the records would be futile, document in the claims filed all efforts to obtain the records and negative responses.

2.  Schedule the Veteran is scheduled for a VA examination with a psychologist or psychiatrist.  The examiner must review the claims file and should note that review in the report.  The examiner is asked to address the following:

(a)  Diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to DSM-IV.  The Veteran has been diagnosed with several different psychiatric disabilities.  Please discuss the various diagnoses and opine as to whether or not the diagnoses are of the same disability.

(b)  Provide a opinion as to whether there is clear and unmistakable (undebatable) evidence that any psychiatric disability pre-existed active service. 

(c)  If so, is it clear and unmistakable (undebatable) that a psychiatric disorder was not permanently aggravated beyond the natural progression of the disorder during the Veteran's periods of service from December 1970 to November 1974?  Was there any increase in the preexisting psychiatric disability, and if so, was that increase beyond the natural progress of the disorder?

(d)  For any psychiatric disability that did not clearly and unmistakably preexist service, provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that psychiatric disability is related to the psychiatric symptoms during service.

3.  Then readjudicate the claim.  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 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 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. 2013).


______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs