Citation Nr: 1336500 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 12-21 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disorder, previously considered as a mixed personality disorder, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and B.H. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied a petition to reopen a claim for service connection for mixed personality disorder, also claimed as mental illness. Whereas the RO's June 2012 Statement of the Case (SOC) reopened the claim, before denying it again on the merits, the Board retains jurisdiction to decide the issue of reopening the claim in the first instance. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A hearing was held in June 2013 at the RO before the undersigned Veterans Law Judge of the Board ("Travel Board" hearing), a transcript of which is of record. In July 2013, the Veteran provided additional evidence consisting of a private psychologist's opinion accompanied by a waiver of RO initial consideration, which the Board hereby accepts into the record. See 38 C.F.R. §§ 20.800, 20.1304 (2013). FINDINGS OF FACT 1. In August 1990, the RO denied the Veteran's original claim of entitlement to service connection for a psychiatric disorder. 2. The Veteran has since submitted additional evidence which relates to an unestablished fact necessary to substantiate this previously denied claim. 3. There is competent medical opinion evidence associating the Veteran's post-service diagnosed depressive disorder with his military service. CONCLUSIONS OF LAW 1. The August 1990 RO rating decision denying service connection for a psychiatric disorder is a final and binding determination. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2013). 2. There is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for depressive disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. The Board is reopening the claim for service connection for a psychiatric disorder, and further, granting the underlying claim on the merits. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). In an August 1990 rating decision, the RO denied the Veteran's original claim for service connection for a psychiatric condition, indicating that during active service the Veteran was diagnosed with various personality disorders (immature personality disorder; mixed personality disorder; adjustment disorder with mixed emotions) for which service connection was not available as a matter of law, as a deemed congenital or development condition. Further found was an alcohol abuse syndrome during service, also not compensable under VA law since considered due to willful misconduct. The Veteran did not file a timely Notice of Disagreement (NOD) with that decision, to initiate an appeal of it, and hence it became final and binding based on the evidence then of record. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. In addition, no new and material evidence was received within one year of the decision. See 38 C.F.R. § 3.156(b). When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). Since the prior August 1990 RO rating decision, additional evidence has been received in the form of a July 2013 private psychologist's evaluation report which indicates a clinical diagnosis of "major depressive disorder, recurrent, moderate, without interepisode recovery." The psychologist found that the Veteran's depression had been a chronic condition since service, without a period of relapse. Having reviewed the foregoing, the Board ascertains a sufficient evidentiary basis upon which to premise reopening of this claim. The prior decisional rationale was that the Veteran was not claiming a mental illness subject to service connection under applicable VA law. Hence, there was no qualifying claimed disability. Under VA law, the very first criterion to establish service connection is competent evidence of the current disability claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hicks v. West, 12 Vet. App. 86, 89 (1998). Given the diagnosis of major depressive disorder, there is now a post-service diagnosed disability that qualifies for service-connected disability compensation. The July 2013 psychological evaluation report further identifies depressive disorder as a continuation of in-service pathology, thus with a potential causal linkage to his military service. Therefore, on the basis of this new diagnosis (and pending further review below of the full contents of the July 2013 report), there is new and material evidence to reopen the Veteran's claim. Consequently, the claim for service connection for a psychiatric disorder is effectively reopened. See 38 C.F.R. § 3.156(a). The Board further finds that a favorable decision may be issued based upon the record as it stands. Generally, under the law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). A personality disorder is deemed under VA law a congenital condition that is generally not recognized as a disability for VA purposes. See 38 C.F.R. § 3.303(c). There is an exception for when a personality disorder was aggravated by superimposed injury or disease in service, but that is not alleged or shown in this instance. See VAOPGCPREC 82-90 (July 18, 1990). See also Martin v. Principi, 17 Vet. App. 342, 328-39 (2003). VA law and regulations preclude granting service connection for a disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. See U.S.C.A. § 105; 38 C.F.R. § 3.301(d). See also VAOPGCPREC 7-99 (June 9, 199). There is a limited exception to this doctrine when there is "clear medical evidence" establishing that a claimed condition involving alcohol or drug abuse was acquired secondary to a service-connected disability, itself not due to willful misconduct. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2011). In reviewing the factual background of this case, the Veteran was diagnosed with various personality disorders during his active military service, as well as a pattern of alcohol abuse, and at one point underwent a three-day in-service psychiatric hospitalization in March 1986 after being admitted in an "acutely dysphoric state." Prior to this, records indicate that his problem with depression began six to eight months previously when he took an unauthorized absence from his command upon discovering that his planned enrollment in Naval "A" School had been cancelled. After discharge from hospitalization, the Veteran underwent separation from service. Meanwhile, an August 1985 letter from within the Naval Legal Service Office, Defense Division, in connection with apparent disciplinary action Veteran had received in connection with his period of unauthorized absence, observed on the Veteran's behalf that he "appears to be emotionally disturbed and extremely depressed... [o]ne of the primary reasons for this depression is that his 'A' school was denied to him because he was too slow in completing prerequisite modules or correspondence courses." Post-service records of VA outpatient treatment in December 2009 reflect a diagnosis, in part, of major depressive disorder, with dysthymia. Thereafter, the July 2013 private psychologist's evaluation of the Veteran provided a diagnosis of major depressive disorder, recurrent, moderate, without interepisode recovery; alcohol dependence; and schizoid personality features. The psychologist further indicated that "[i]t appears evident [the Veteran's] depression began while he was in Navy. It seems reasonable/plausible the root cause of [the Veteran's] depression is losing his opportunity to attend A school as promised. [The Veteran's] BDI-II score denotes a moderate level of depression. His struggles with dysphoric mood began during the time he spent serving his country. Unfortunately, the impact of being told he could not attend A school after being promised a position, has affected his life significantly. He became isolative, homeless and depressed. His depression has been chronic - without a period of relapse. " The foregoing July 2013 psychologist's opinion causally relates the Veteran's post-service depressive disorder to an incident of his military service. While the initial clinical findings during service primarily were limited in scope to a personality disorder, for which compensation is non-payable, the recent psychologist's report suggests that the more accurate diagnosis of what the Veteran genuinely experienced during service was depression, which then remained continuous without relapse. The Board also tends to find this explanation plausible given the severity of the Veteran's in-service symptomatology shown. There remains the question of the role, if any, of a pattern of substance abuse in the Veteran's overall mental state, which if present would also preclude recovery. However, the July 2013 psychological opinion took the Veteran's alcohol abuse pattern into account, and did not ascertain it to be the determinative factor behind his in-service and subsequent mental health difficulties, instead identifying the "root cause" of depression as his time in the service. Resolving all reasonable doubt in the Veteran's favor on the material issue of causation, the comprehensive criteria for service connection for a depressive disorder are therefore met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for depressive disorder is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs