Citation Nr: 1337715 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-17 465 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Harold A. Beach, Attorney INTRODUCTION The appellant served on active duty from March 14, 1972 to April 11, 1972. In October 2006, the RO denied the appellant's claim of entitlement to service connection for a psychiatric disorder, claimed as bipolar disorder. The appellant was notified of that decision, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2006). In August 2008, the appellant requested that VA reopen his claim of entitlement to service connection for a psychiatric disorder. In October 2008, the RO denied that request, finding that the appellant had not submitted new and material evidence with which to reopen the claim. The appellant disagreed with that decision, and this appeal ensued. In March 2012, during the course of the appeal, the appellant had a video conference with the Veterans Law Judge whose signature appears at the end of this decision. After reviewing the record, the Board is of the opinion that the issue of entitlement to service connection for a psychiatric disorder requires further development. Accordingly, it is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. In an unappealed rating decision, dated in October 2006, the RO denied the appellant's claim of entitlement to service connection for a psychiatric disorder, claimed as a bipolar disorder. 2. Evidence associated with the record since the October 2006 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The RO's October 2006 rating decision, which denied the appellant's claim of entitlement to service connection for a psychiatric disorder, claimed as bipolar disorder, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). 2. New and material evidence has been submitted to reopen the appellant's claim of entitlement to service connection for a psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether VA has met its statutory duty to assist the appellant in the development of his claim: Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. VA informed the appellant of the basis for the prior denial and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also informed him of the evidence necessary to support the underlying service connection claim, including the evidence to be provided by the appellant, and notice of the evidence VA would attempt to obtain. In addition, VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. In response, the appellant has submitted a substantial amount of additional evidence. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the appellant that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will determine whether or not new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder. Analysis During his March 2012 hearing, the appellant testified that his current psychiatric disorder was first manifested in service as an immature personality disorder. He stated that such disorder had been incurred after his fall from a bunk. He further testified that since that time it has deteriorated to the point that he now has bipolar disorder. Therefore, he maintained that service connection for bipolar disorder was warranted. At the very least, he contended that he had submitted new and material evidence to reopen the claim since the RO's denial in October 2006. After reviewing the record, the Board finds that the additional evidence is new and material for the purpose of reopening the claim. Therefore, the claim is reopened, and, to that extent, the appeal is granted. Service connection is warranted for a particular disability, when there is competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In October 2006, when the RO denied the appellant's claim of entitlement to service connection for a psychiatric disorder, the evidence on file consisted of the appellant's service treatment records; records reflecting the appellant's VA treatment from December 1999 through March 2006; an initial psychiatric examination for the Social Security Administration in July 2001; records reflecting the appellant's treatment by or through Seven Counties Services Incorporated from July 2001 through December 2003; and records reflecting the appellant's treatment by or through T. S. P., M.D., in August and September 2004. Such evidence showed that inservice, the appellant was found to have an immature personality disorder, a disorder for which service connection was not generally granted. 38 C.F.R. § 3.303(b). The evidence was negative for bipolar disorder or for the claimed head injury in service. Rather, it showed that bipolar disorder was manifested in 1989. Not only was that many years after the appellant's separation from service, there was no competent objective evidence on file of a nexus to service. Absent any findings of a chronic, identifiable psychiatric disorder in service or of a nexus between the bipolar disorder and service, the appellant did not meet the criteria for service connection. Accordingly, service connection was denied; and, as noted above, that decision became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The 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 VA shall reopen the claim and review the former disposition of the claim. When an appellant seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the appellant has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). New evidence means existing evidence not previously submitted to VA 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. Evidence added to the record since the RO's October 2006 rating decision includes the report of a psychological evaluation performed in May and July 1989 at the East Arkansas Mental Health Center, the report of an April 1996 Disability Determination Examination performed for the Social Security Administration, and the report of an October 2010 VA psychiatric examination. Such evidence is new in the sense that it has not previously been before the VA. It is also material in that it shows that the appellant complained of paranoia and hallucinations as early as 1982 and that shortly after service, he spent 71/2 years in prison for killing a man. This is particularly important, because the VA examiner found that for the period from 1972 to 2000, there was not sufficient documentation on file to establish a connection between the appellant's erratic behavior in service and his current bipolar disorder. As such, the additional evidence tends to relate to an unestablished fact necessary to substantiate the claim. It is neither cumulative nor redundant of the evidence of record in October 2006, and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is " low ." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, the additional evidence is sufficient to reopen the claim; and to that extent, the appeal is granted. ORDER New and material evidence having been submitted, the request to reopen the claim of entitlement to service connection for a psychiatric disorder is granted. REMAND In light of the foregoing decision, the VA may proceed to evaluate the merits of the claim of entitlement to service connection for a psychiatric disorder. Elkins v. West, 12 Vet. App. 209 (1999). It would be premature for the Board to do so prior to the RO, as such action could result in prejudice to the appellant's claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); VAOPGCPREC 16-92. Accordingly, the case is REMANDED to the RO for the following development: 1. The RO must request that the appellant identify the name and address of all health care providers who treated him for psychiatric disorder/manifestations prior to 1989. This must include, but is not limited to, those who may have treated him during his time in prison shortly after service. In this regard, the RO must request that the appellant provide the name and location of the prison where he was incarcerated. When the foregoing actions have been completed, the RO must make a direct request for the appellant's treatment records from all of health care providers identified by the appellant as having treated him prior to 1989. This must include a request to the prison where he was incarcerated shortly after service. A failure to respond or a negative reply to any request must be associated with the claims folder. If the requested records are held by an entity associated with the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2013). If the requested records are identified as being held by an entity not associated with the federal government, and those records are found to be unavailable, notify the appellant and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b) (West 2002 and Supp. 2013); 38 C.F.R. § 3.159(e) (2013). 2. IF, AND ONLY IF, additional evidence is obtained showing that the appellant received psychiatric treatment prior to 1989, schedule the appellant for a psychiatric examination to determine the nature and etiology of any psychiatric disorder found to be present. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a psychiatric disorder is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must also render an opinion as to whether it is at least as likely as not that the appellant's current psychiatric disorder was first manifested by his bizarre behavior in service. In so doing, the examiner must state HOW AND WHY he or she reached the opinion they did. If the examiner is unable to render an opinion without resorting to speculation, he or she must state WHY they are unable to do so. The appellant is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2013). In the event that the appellant does not report for a scheduled VA examination, the RO must associate with the claims folder a copy of the notice informing the appellant of the date, time, and location of the examination. If the notice is returned as undeliverable by the Post Office, that fact must be noted in writing and associated with the claims folder. In notifying the appellant of the examination, the RO may wish to enlist the assistance of the appellant's representative, as the appellant has been shown to be HOMELESS. 3. When all of the necessary actions have been completed, the RO must undertake any other indicated development. Then, it must make a de novo review of the evidence and adjudicate the issue of entitlement to service connection for a psychiatric disorder. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The appellant need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs