Citation Nr: 1337223 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-17 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric condition. 2. Entitlement to service connection for an acquired psychiatric condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The January 2009 rating decision denied the Veteran's claim based on his failure to submit new and material evidence to reopen the Veteran's original claim, which was originally denied in a September 1968 rating decision. The Veteran originally requested a hearing, but in November 2011 sent VA notice that he wished to cancel the hearing. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence. FINDINGS OF FACT 1. Evidence regarding the Veteran's acquired psychiatric condition associated with the claims file since the September 1968 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim. 2. The preponderance of competent and credible evidence shows that an acquired psychiatric disorder was not incurred in service and the currently diagnosed psychiatric disorders have not been attributed to service. CONCLUSIONS OF LAW 1. The evidence received since the January 1968 denial is new and material; and the claim of entitlement to service connection for an acquired psychiatric condition is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. An acquired psychiatric disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice must be provided before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was advised by December 2008 and December 2010 letters of the evidence and information necessary to substantiate his claim, and the responsibilities of the Veteran and VA in obtaining such evidence. This notice was provided before the subsequent rating decisions in January 2009 and June 2011. As a result, VA has complied with its duty to notify requirements. The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated service treatment records, VA medical records, private medical records, and Social Security Administration records with the file. The record does not indicate and the Veteran has not notified VA that additional VA medical records, private medical records, or social security medical records exist. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded a VA examination in June 2010, with a clarifying opinion submitted by the examiner in July 2010. The Veteran has not argued, and the record does not reflect, that this examination is inadequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner considered the Veteran's relevant medical history and when read in concert with the July 2010 clarifying opinion, provides a well-reasoned and adequately supported opinion. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. New and Material Evidence Rating decisions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2013). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a final claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened....") Service connection for an acquired psychaiatric disorder was denied in a September 1968 rating decision as the evidence of the record at the time did not show that the Veteran had an acquired psychiatric disorder and his personality disorder was considered to be a development or constitutional abnormality rather than a disability. In a January 2009 rating decision, the RO denied reopening the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. The RO subsequently reopened the claim, however, as discussed above, the Board must still determine if new and material evidence has been submitted. The Board finds that private medical records submitted by the Veteran along with his January 2010 Notice of Disagreement constitute new and material evidence. 38 C.F.R. § 3.156(a). The original denial in 1968 was based on the lack of evidence of a current disability. These recently submitted records show that the Veteran currently has acquired psychiatric disabilities. As a result, the Board reopens the claim. The Board has considered whether the reopened claim regarding the Veteran's acquired psychiatric condition should be remanded for consideration by the agency of original jurisdiction. However, as the Veteran has been provided appropriate VCAA notice on establishing service connection and has been given substantial opportunity to submit evidence and argument in support of the appeal, and because the RO has obtained all relevant records identified by the Veteran as well as VA medical opinions, the Board finds no prejudice in proceeding to consider the merits of the reopened claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1994). III. Service Connection for an Acquired Psychiatric Condition Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Certain chronic disabilities are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran has not been diagnosed with any of the specified chronic diseases. As a result, presumptive service connection is not warranted. To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Regarding requirement (1), the Veteran has multiple current diagnoses. These include major depressive disorder, cognitive disorder, bipolar affective disorder, obsessive-compulsive disorder, generalized anxiety disorder, and attention deficit hyperactivity disorder (ADHD). Private medical records submitted by the Veteran list these diagnoses. The June 2010 VA examination diagnosed the Veteran with both major depressive disorder and a cognitive disorder. Requirement (1) for service connection is met. With respect to requirements (2) and (3), the Board finds that the probative evidence does not support a finding of an in-service incurrence or aggravation of a disease or injury, or that any nexus exists between such an incurrence or aggravation and the Veteran's current condition. Service treatment records indicate that the Veteran was admitted to a naval hospital in April 1968 with a diagnosis of adjustment reaction of adolescence. The Veteran was later given a clinical diagnosis of passive aggressive personality by staff psychiatrists while in service. Prior to the Veteran's separation from service, a Medical Board met in April 1968 and determined that his condition existed prior to entry into service and was not aggravated by active duty. Service treatment records show no objective evidence of treatment, diagnoses, or symptoms of any of the Veteran's current conditions. In explaining the Veteran's passive aggressive personality diagnosis, the 1968 Medical Board noted that "[t]he patient's affect was constricted and his mood was situationally saddened. He was not overtly depressed nor believed to be suicidal." The report goes on to note that "[a]t no time during his hospitalization were there ever any true signs of anxiety, depression, or psychosis elicited. He did not go to group psychotherapy. In individual psychotherapy he constantly reiterated that he could not go back to that ship and face living with those same men again." From the record, it appears that Veteran did not enjoy being in the Navy and may have had some personal issues with his shipmates; however, it does not reflect any signs of the Veteran's currently diagnosed conditions. In addition, post service private medical records submitted by the Veteran provide no explanation or "nexus" that links the Veteran's current conditions with his active military service. The June 2010 VA examination conducted in connection with the Veteran's current claim found that there was no nexus between the Veteran's current psychiatric condition and his military service. The examiner notes that service treatment records "make no mention of depression or anxiety" and that there was a substantial gap of approximately 30 years between the Veteran's discharge and the first record of treatment for a mental health condition. After interviewing and examining the Veteran and reviewing the claims folder, the examiner concluded that the Veteran's acquired psychiatric condition was "less likely as not caused by or a result of his military service." With respect to aggravation, the July 2010 clarifying opinion for the June 2010 VA examination concluded that the Veteran's acquired psychiatric condition "was less likely as not aggravated by his documented mental health condition in the service (passive aggressive personality)." The examiner continued: There is no evidence of any mental health difficulties between the time of his discharge and about 30 years later, when he was first treated for mental health problems as a civilian. His service treatment records do not mention anxiety or depression, per se, but he was upset about problems he was having onboard [the] ship and was very unhappy about being in the Navy and wanted to be discharged. At worst he was having adjustment problems that resolved with his discharge. As the preponderance of competent evidence in the record does not indicate an in-service incurrence or aggravation, or a nexus between any such incurrence and the Veteran's current condition, requirements (2) and (3) for service connection are not met and service connection is not warranted. Turning to the Veteran's diagnosis of passive aggressive personality disorder, it should be noted that as a general proposition, congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes, and therefore usually cannot be service connected. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Also, according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Nevertheless, the competent evidence of record does not support a finding that service resulted in an aggravation of the disease, or that the symptoms noted in service were anymore than the natural progression of the Veteran's preexisting personality disorder. At the time of diagnosis, medical professionals and later the Medical Board stated that service did not aggravate the Veteran's personality disorder. Moreover, the competent evidence also does not support a finding that the Veteran's personality disorder was subject to a superimposed disease or injury that occurred during military service. Turning again to the June 2010 VA examination and July 2010 clarifying opinion, the examiner noted that there was no evidence of anxiety or depression in service, or any other condition that may have aggravated the Veteran's personality disorder. For the reasons explained above, the Board must conclude that the preponderance of the evidence is against the Veteran's claim. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER The previously denied claim of entitlement to service connection for an acquired psychiatric condition is reopened. Entitlement to service connection for an acquired psychiatric condition is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs