Citation Nr: 1339923 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-09 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Joseph Davis, Agent ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board's decision below finds that new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder. The reopened claim herein remanded to the RO. FINDINGS OF FACT 1. In April 2004, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for a psychiatric disability, including paranoid schizophrenia. Although notified of this decision that same month, the Veteran did not timely file an appeal. 2. Evidence received since the RO's April 2004 letter is new and material, and combined with VA's duty to assist raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a psychiatric disability. CONCLUSION OF LAW The criteria for reopening the claim of entitlement to service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by reopening the issue of entitlement to service connection for a psychiatric disorder. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to VA. 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). In April 2004, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for a psychiatric disability, including paranoid schizophrenia. In its decision, the RO determined that there was no evidence of a psychiatric disorder currently, or during the Veteran's military service. Although notified of this decision that same month, the Veteran did not timely file an appeal. Moreover, no additional evidence was received within the appeal period. 38 C.F.R. § 3.156(c). In March 2010, the Veteran filed the present claim to reopen the issue of entitlement to service connection for a psychiatric disorder. The Board must review all of the evidence submitted since the last final action to determine whether the Veteran's claim for service connection should be reopened. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). 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). Recently, the Veteran submitted a medical opinion letter, dated in February 2013, from A.J., M.D. In the letter, Dr. J. reported that he had been treating the Veteran since 2010 for diagnoses of major depressive disorder and anxiety disorder. Dr. J. further opined, "[t]his has been a chronic issue that goes back to his military service." This new evidence, when considered with the old evidence of record, triggers VA's duty to assist in obtaining a supplemental medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding a standard that would require reopening if the newly submitted evidence along with the other evidence of record, combined with VA assistance raised a reasonable possibility of substantiating the claim); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the claim for service connection for a psychiatric disorder is reopened. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a psychiatric disorder is reopened, and to this extent only, the appeal is granted. (CONTINUED ON NEXT PAGE) REMAND The Veteran is seeking service connection for a psychiatric disorder. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A. Service Personnel Records The Veteran's report of separation, Form DD 214, listed the reason for his separation from service as unsatisfactory performance. The Veteran contends that he acquired a psychiatric disorder secondary to his inservice duties as an air traffic controller. Under these circumstances, the RO should request the Veteran's service personnel record file for review and consideration herein. B. Post Service Treatment Records The February 2013 letter from A. J., M.D., noted that the Veteran had been receiving treatment from Dr. J. since 2010. Under the circumstances of this case, the RO must attempt to obtain, with the assistance of the Veteran, all of the Veteran's post service psychiatric treatment records. C. Medical Examination Required The March 2013 medical opinion letter from Dr. J., reported that the Veteran currently had major depressive disorder and anxiety disorder. Dr. J. further opined that, "[t]his has been a chronic issue that goes back to his military service." This opinion letter does not identify what records Dr. J. reviewed in rendering this decision, and it also provided no rationale for the opinion given. Under these circumstances, the Board finds that a psychiatric examination is necessary to determine whether any current psychiatric disorder was incurred in or aggravated during the Veteran's military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain all the Veteran's service personnel records. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the appropriate signed release form has been obtained, the RO must obtain and associate all pertinent treatment records from Dr. J. Dr. J. must be requested to provide the bases for his statement that the Veteran's major depressive disorder and anxiety disorder "has been a chronic issue that goes back to his military service." All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure these records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 3. The Veteran must be afforded for the appropriate examination to determine whether any currently or previously diagnosed psychiatric disorder is related to the Veteran's military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed psychiatric disorder, including major depressive disorder and anxiety disorder, is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions 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. 4. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated on the merits. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs