Citation Nr: 1337333 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-22 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a mental disorder to include anxiety and depression, and if so, whether service connection is warranted. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), anxiety and depression. 4. Entitlement to service connection for a sleep disorder. 5. Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions in May 2008, March 2009 and November 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal was remanded to the RO in September 2012 for, among other things, the scheduling of a videoconference Board hearing. The hearing was held in January 2013. The case has been returned to the Board for appellate review. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issue of whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a mental disorder to include anxiety and depression is decided herein, whereas issues 2 through 5 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for a mental disorder in a December 2003 rating decision; the Veteran was notified of this decision in January 2004, but did not appeal the decision or submit any pertinent evidence within the appeal period. 2. Evidence received after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record, addresses unestablished facts necessary to substantiate the claim, and raises the reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a mental disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although the RO determined that new and material evidence was presented to reopen the Veteran's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence means existing evidence not previously received by 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). The United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing 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). The RO denied the Veteran's claim for service connection for a mental condition in a December 2003 rating decision. He was notified of this decision in January 2004 and he did not file a notice of disagreement to initiate an appeal. The evidence of record at the time of the previous denial included the Veteran's claim that he had mental problems due to being given LSD, and service treatment records (STRs), which showed no record of his being given LSD. STRs also showed that the Veteran was referred in 1974 for a mental hygiene evaluation for complaints of dizzy spells and feelings of insecurity. A June 1975 discharge examination yielded a finding that he was normal psychiatrically. Also of record was a 2001 VA examination which showed no chronic psychiatric condition. No pertinent evidence was received within the appeal period following the December 2003 rating decision. The evidence received after the appeal period includes VA medical treatment records, private medical reports, VA examination reports, and the Veteran's testimony at a January 2013 hearing before the Board. The medical evidence shows the existence of current psychiatric disabilities, including diagnosed depression and anxiety, as well as a positive PTSD screening. This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material reopening of the claims for service connection for a mental disorder to include anxiety and depression is warranted. ORDER As new and material evidence has been received, reopening of the claim for service connection for a mental disorder to include anxiety and depression is granted. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In September 2012, the Board remanded this claim in order to schedule the Veteran for a Board hearing and to afford the Veteran the opportunity to submit additional relevant evidence. The Veteran's former representative, a private attorney, had reported in July 2012 that he was personally in possession "of a large file full of relevant records that should be considered as part of [the Veteran's] appeal." He indicated that he would like to be advised as to how to turn these documents over to the VA for review. The Board's remand indicated that the RO should (a) request that the Veteran submit any records he felt were pertinent, (b) contact the former attorney and indicate that he may submit any records he feels are pertinent. Then, the RO was to readjudicate the issues on appeal, after which it was to schedule the Veteran for a Board video hearing. The Veteran appeared and provided testimony before the undersigned Veterans Law Judge in January 2013. He testified, among other things, that he had filed for Social Security Administration (SSA) disability benefits but was denied. In April 2013, he submitted some documents, including VA treatment records dated in March 2013, as well as a non-VA psychological evaluation associated with a recent incarceration dated in February 2012. This was submitted directly by the Veteran with a waiver of RO consideration. As part of his recent submissions, the Veteran reported that to the best of his knowledge a crash he was involved in cleaning up after occurred during service in December 1973. He also noted that he was involved in another incident in which a raft he was in overturned on the Rhine River between June, July and August 1974. These appear to be further descriptions of (1) a helicopter crash he described at his hearing, which he testified occurred in the Mannheim or Wildflecken area in April 1974. He testified that he had to pick up body parts, and this has haunted him to the present time. (2) The reference to the raft turning over is in reference to his testimony that he was in a raft of 13 people, an assault wrecker, which was in white water on the Rhine River when it overturned. He was fearful because he could not swim, but he was saved. He stated that he started to seek mental health treatment in service due to these incidents sometime in 1974. He also notes that he was put on medication for his mental health symptoms. The Board notes that the RO denied service connection for PTSD in November 2009 in part because his stressor could not be corroborated. VA treatment records show a positive PTSD screening but not an actual diagnosis of PTSD. The Board notes the November 2009 formal finding of lack of information required to corroborate stressors associated with the claim for PTSD. In view of this more recent evidence relevant to the stressor, the RO or the AMC should determine whether the stressor can now be corroborated. Additionally, in view of the Veteran's testimony, the Board finds that a search for any additional mental health clinic STRs should be conducted. The record does not reflect that the RO contacted the Veteran's prior representative who submitted the July 2012 letter indicating that he had documents relevant to this claim. It is unclear whether the documents submitted by the Veteran constitute the totality of the available records, and there is some suggestion that they do not. Specifically, the letter referencing a large file full of relevant records that should be considered as part of the appeal was written before the additional VA treatment records were generated. The Court has long held that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). As such, the Veteran's relevant records from SSA should be sought on remand. Finally, the Board notes that the RO did not readjudicate the claim after it received accomplished all of the directives set forth in the Board remand but before the videoconference hearing, as set forth in the prior Remand. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran's former representative and request that he submit any evidence he may have pertinent to the Veteran's claims on appeal. If the Veteran's authorization is required in order to obtain these records, such should be obtained. 2. The AMC/RO should attempt to obtain service treatment records for mental health treatment that are as yet unassociated with the claim. 3. In light of the April 2013 statement submitted by the Veteran and his testimony, the AMC/RO should contact him and request that he provide any additional information he may have on which unit sustained plane/helicopter crash casualties. The Veteran should be asked to identify any additional details, including the names of any persons injured in the reported rafting accident in June, July or August 1974. 4. The AMC/RO should obtain from the Social Security Administration a copy of the decision regarding any claim(s) for disability benefits as well as the medical records relied upon concerning the claim(s). All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC/RO must notify the Veteran and (a) identify the specific records the AMC/RO is unable to obtain; (b) briefly explain the efforts that the AMC/RO made to obtain those records; (c) describe any further action to be taken by the AMC/RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. The AMC/RO should attempt to corroborate the Veteran's rafting stressor in light of the additional evidence obtained since the aforementioned November 2009 formal finding of lack of information to corroborate the Veteran's stressors. The Board notes the Veteran's April 2013 statement regarding the incident on the Rhine River with the raft overturning while he was in it between June, July and August 1974. This should include a search of the relevant morning reports for any rafting injuries during the relevant time period. If the Veteran provides any additional information on the plane crash that would assist in verifying the reported stressor, the AMC/RO should request further verification of that incident as well. Thereafter, it should prepare a summary of the stressor or stressors that it has determined are established by the record. 6. Obtain recent VA treatment records not already associated with the claims folder. 7. Then, the Veteran should be afforded a VA psychiatric examination to determine whether he has PTSD due to a verified in-service stressor and the nature and etiology of any other acquired psychiatric disorders present during the period of the claim. The examination must be conducted by a psychiatrist or psychologist. The examiner must be instructed that only those verified stressors may be considered for the purpose of determining whether Veteran was exposed to a stressor in service. The Veteran's claims files and any pertinent records in Virtual VA/VBMS that are not contained in the claims files must be made available and reviewed by the examiner. Any indicated studies should be completed. Based upon a review of the evidence of record and the examination results, the examiner should state whether the Veteran has an acquired psychiatric disability, to include PTSD due to a verified in-service stressor or stressors. If a diagnosis of PTSD is deemed appropriate, the examiner should identify the elements supporting the diagnosis. If PTSD is not diagnosed, the examiner should explain why the Veteran does not meet the criteria for the diagnosis. With respect to any other acquired psychiatric disorders present during the period of the claim, to include but limited to depression and anxiety, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide a requested opinion 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. 8. The RO or the AMC should also undertake any other development it determines to be warranted. 9. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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. 2013). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs