Citation Nr: 1337620 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 03-05 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from March 1986 to February 1987. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for bipolar disorder. In February 2005, the appellant testified at a Board hearing at the San Antonio RO. A transcript of that hearing has been associated with the record. In May 2005, the Board remanded the matter for additional evidentiary development. At that time, the Board recharacterized the issue on appeal more broadly, as entitlement to service connection for an acquired psychiatric disorder, in order to clarify the nature of the benefit sought. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). In March 2007, January 2011, and June 2012, the Board again remanded the matter for additional evidentiary development and due process considerations. In a January 2013, the appellant requested the opportunity to participate in a second Board hearing as the Veterans Law Judge who had conducted the February 2005 Board hearing had left the employ of the Board. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013) (providing that the Veterans Law Judge who conducts a hearing shall participate in making the final determination on the claim). In March 2013, the Board remanded the matter to afford the appellant the opportunity to attend his requested Board hearing. In July 2013, the appellant testified at a Board hearing at the San Antonio RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the appellant's Virtual VA file. After reviewing the entire record on appeal in detail, the Board observes that the appellant's claim of service connection for an acquired psychiatric disability was previously denied by the RO in an unappealed October 1993 rating decision. Although the RO certified the current issue on appeal as a new claim, the Board finds that, in light of the appellant's contentions and the evidence of record, his current claim is not for a new disability separate and distinct from that which was previously considered and denied in the final October 1993 rating decision. Rather, the two claims have the "same factual basis" for purposes of 38 U.S.C. § 7104(b). See Boggs v. Peake, 520 F.3d 1330 (Fed.Cir.2008); Velez v. Shinseki, 23 Vet. App. 199, 204-05 (2009). Under these circumstances, new and material evidence is required to reopen the claim and the Board is obligated by statute to consider whether new and material evidence has been received prior to addressing the merits of this claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (holding that the Board does not have jurisdiction to consider a claim which has previously adjudicated unless new and material evidence is presented). Thus, the Board has recharacterized the issue as set forth on the cover page of this decision. Given the favorable outcome below, it is clear that the appellant has not been prejudiced by the Board's actions. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). For the reasons set forth below, a remand is necessary with respect to the underlying issue of entitlement to service connection for an acquired psychiatric disability. This issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an October 1993 rating decision, the RO denied service connection for a psychiatric disability. Although the appellant was duly notified of the RO's decision and his appellate rights in a November 1993 letter, he did not perfect an appeal within the applicable time period. There was also no evidence received within one year of the issuance of that decision. 2. In September 2002, the appellant requested reopening of his claim of service connection for a psychiatric disability. 3. The evidence received since the last final October 1993 rating decision denying service connection for a psychiatric disability relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disability. CONCLUSIONS OF LAW 1. The October 1993 rating decision denying service connection for a psychiatric disability is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1993). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a psychiatric disability. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision. Background In pertinent part, the appellant's service treatment records show that, at his February 1986 military enlistment medical examination, a psychiatric evaluation was normal. At that time, the appellant also expressly denied ever having been treated for a mental condition. He further denied having or ever having had depression or excessive worry, loss of memory or amnesia, frequent trouble sleeping, or nervous trouble of any sort. In-service treatment records show that the appellant was seen in the mental health clinic for an alcohol evaluation in August 1986. The examiner noted that an objective examination for primary indicators was negative, and the assessment was no pattern of alcohol abuse. The examiner recommended that the appellant attend a seminar only. In January 1987, the appellant was arrested for driving under the influence with a blood alcohol content of .21. Later that month, the appellant was notified by a Staff Judge Advocate that he was recommending the appellant's discharge from active service due to a pattern of misconduct, including operating a motor vehicle while intoxicated. The appellant's service personnel records also reflect additional episodes of misconduct for which he received individual counseling on multiple occasions, including failing to report for a mandatory dental appointment, failing a room inspection, failing to report for duty on a weekend, arriving late to work, and failing to observe uniform standards. At his January 1987 military separation medical examination, the appellant described his health as excellent. He indicated that he had never been treated for a mental condition, and he denied having or ever having had depression or excessive worry, loss of memory or amnesia, frequent trouble sleeping, or nervous trouble of any sort. A psychiatric evaluation was also normal. In February 1987, the appellant submitted an original application for VA compensation benefits seeking service connection for a right shoulder disability. The Board observes that the appellant's application was entirely silent for any indication of a psychiatric disorder, as is medical evidence assembled in connection with that claim. This medical evidence included an April 1987 VA medical examination report which shows that evaluation of the appellant's psychiatric system was unremarkable at that time. In an August 1987 rating decision, the RO granted service connection for a right shoulder disability, residuals of a right acromioclavicular dislocation, and assigned an initial 10 percent disability rating. Subsequent VA clinical records show that the appellant was seen in a VA clinic in January 1992 at which time he was noted to be nervous and anxious. He was assessed as having an adjustment disorder and anxiety. In April 1992, the appellant was hospitalized at a VA facility for psychiatric treatment. It was noted that he had recently been admitted to San Antonio State Hospital for indecent exposure, but left after two weeks and sought admission to the VA facility. He reported audio and visual hallucinations and claimed that he had a history of two prior psychiatric hospitalizations during his period of active duty from 1986 to 1987. The hospitalization summary describes the appellant as being manipulative and irresponsible throughout his period of hospitalization. The diagnosis was schizophrenia. During a subsequent period of hospitalization in May 1992, the appellant was admitted with a diagnosis of psychosis, not otherwise specified. He was discharged several days later with a diagnosis of schizophrenia, catatonic type, provisional. In June 1993, the appellant submitted a claim of service connection for depression, which he claimed was secondary to pain caused by his service-connected right shoulder disability. Records assembled in connection with the appellant's claim included clinical records showing that he was hospitalized at a non-VA facility in June 1993 after he was charged with aggravated sexual assault of a child. The appellant was noted to be an unreliable historian. The initial diagnosis was schizophrenia, paranoid type. The final diagnoses in August 1993 were bipolar disorder, manic type, and histrionic personality. In an October 1993 rating decision, the RO denied the appellant's claim of service connection for depression, finding that the record did not show that the appellant's current mental disorder, including bipolar and schizophrenia, was secondary to a service-connected disability. Although the appellant was notified of the RO's determination and his appellate rights in a November 1993 letter, he did not appeal the decision, nor was new and material evidence submitted within one year of that decision. In pertinent part, subsequent relevant evidence shows that, in an October 1995 letter, San Antonio State Hospital indicated that the appellant had either been incarcerated or in inpatient treatment at their maximum security facility since 1992. In an August 1996 letter, VA was notified that the appellant had been released from San Antonio State Hospital in June 1996 and was now receiving outpatient treatment. In September 2002, the appellant again submitted a claim of service connection for a psychiatric disability, claimed as bipolar disorder and a nervous breakdown. In support of his claim, the appellant submitted a September 2002 letter from an individual who described himself as a personal friend of the appellant as well as a "medical professional." The individual indicated that the appellant had "a mental illness, described by some as bipolar, others as schizoid [sic] affect." The individual indicated that the appellant's psychological illness began during his tenure on active duty. Additional VA and non-VA clinical records received in connection with the appellant's claim show that, since approximately 1992, he has remained under continuous treatment for multiple psychiatric diagnoses, including schizophrenia, schizoaffective disorder, bipolar disorder, delirium, generalized anxiety disorder, and personality disorders. Specifically, this evidence includes clinical records from the San Antonio State Hospital corresponding to the appellant's periods of hospitalization there in 1992. These records note that the appellant had reported a history of psychiatric illness since at least 1987. Applicable Law Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). Service connection for certain chronic diseases, including a psychosis, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). Finally, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). The standard of proof generally applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and material evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2013). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. 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 (2013). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence must be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. Analysis As set forth above, in an October 1993 rating decision, the RO denied the appellant's claim of service connection for depression. Although the appellant was duly notified of the RO's decision and his appellate rights, he did not perfect an appeal within the applicable time period. Neither he nor his representative has contended otherwise. There was also no evidence received within one year of the issuance of that decision. Under these circumstances, the Board concludes that the RO's October 1993 rating decision is final and not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103 (2013). In this appeal, the appellant seeks to reopen his claim of service connection for a psychiatric disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). In the October 1993 rating decision, the RO noted that the appellant had been diagnosed as having bipolar disorder and schizophrenia, but indicated that the record did not show that his current mental disorder was secondary to his service-connected right disability, as he contended. Since that final October 1993 rating decision, however, VA has received evidence suggesting that the appellant's current psychiatric disability may have had its onset during his period of active duty. Although advancing a new theory of causation for the same disability generally does not provide a basis upon which to reopen a claim, the September 2002 letter from the self-described "medical professional" indicating that the appellant's psychological illness began during active duty provides a new factual basis upon which to reconsider the claim and, when presumed credible, raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disability, Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Roebuck v. Nicholson, 20 Vet. App 307 (2006); Bingham v. Principi, 18 Vet App. 470 (2004); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). Although the newly received evidence discussed above is adequate for the limited purposes of reopening the claim, given the evidence currently of record, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C.A. § 5103 (West 2002). For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disability is reopened. REMAND A review of the appellant's Virtual VA file indicates that additional relevant evidence has been associated with the record which has not yet been reviewed by the RO. This evidence includes VA clinical records dated from September 2012 to August 2013 reflecting treatment for a psychiatric disability. Absent a waiver, the RO must review this evidence in the first instance. 38 C.F.R. § 20.1304 (2013). Additionally, the Board notes that the record on appeal may be incomplete. Although the appellant has been repeatedly described by mental health professionals as an unreliable historian, on several occasions, he has reported receiving VA mental health treatment since 1987, including at the Audie Murphy VA Medical Center and at a VA outpatient clinic in San Antonio. Indeed, the Board observes that, in support of his claim, the appellant has submitted a large volume of clinical records, one of which is a VA clinical record documenting that he was brought to the clinic in June 1990 by his brother who was concerned over the appellant's behavior, which included expressions of paranoid delusions and incoherent speech. At that time, the assessment was to rule out schizophrenia versus organic delusional syndrome secondary to drug use. A follow-up appointment was scheduled, but the results of any follow-up are not associated with the record currently available to the Board. It does not appear that the RO has previously requested VA clinical records corresponding to the period from 1987 to 1992. To ensure that VA has fulfilled its duty to assist and that the record is complete, appropriate action to obtain any additional clinical records must be accomplished on remand. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c) (2013). VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). After reviewing the record, the Board finds that another VA medical examination is necessary in connection with the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In that regard, the record shows that the appellant underwent VA psychiatric examination in June 2012. At that time, the examiner concluded that the appellant's current psychiatric disability, schizoaffective disorder, was less likely than not incurred in service given the lack of documentation of medical treatment for a psychiatric disability prior to 1992. Given the discussion above, however, the Board finds that an additional examination is necessary to ensure that the medical opinion obtained is based on a complete record. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the South Texas Veterans Health Care System and request copies of all clinical records pertaining to the appellant for the period from February 1987 to 1992, to include any records of treatment during this period at the Audie Murphy VA Medical Center and any VA outpatient clinics in San Antonio, Texas. The RO/AMC should also request clinical records pertaining to the appellant for the period from August 2013 to the present. 2. After the above records are secured and associated with the record, the appellant should be afforded a VA psychiatric examination to determine the nature, etiology, and likely date of onset of his current psychiatric disability. The claims folder and access to any additional records in the appellant's Virtual VA and VBMS files must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current psychiatric disability identified on examination: (1) had its onset during his period of active duty from March 1986 to February 1987; (2) manifested within one year of separation from active duty; or (3) is otherwise causally related to the appellant's active service or any incident therein. A rationale for any opinion expressed must be provided. 3. Following completion of the actions delineated above, and after conducting any additional evidentiary development necessary, the RO/AMC should readjudicate the claim, considering all of the evidence of record. If any benefit sought by the appellant remains denied, he and his representative must be provided a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board, if in order. 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. 2012). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs