Citation Nr: 1341746 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 11-11 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to November 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont, which, in pertinent part, confirmed and continued a denial of service connection for an acquired psychiatric disorder. In November 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The claim for service connection for an acquired psychiatric disorder, claimed as bipolar disorder, was initially denied by the Board in an unappealed October 2008 decision. 2. The evidence received since the October 2008 Board decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. An acquired psychiatric disorder, currently diagnosed as schizoaffective disorder, is etiologically related to active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. Service connection for an acquired psychiatric disorder, currently diagnosed as schizoaffective disorder, is warranted. 38 U.S.C.A. §§ 1110, 1111, 1131(West 2002); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder, was initially denied in an October 2008 Board decision. The Board determined that the Veteran's psychiatric disorder pre-existed active duty service and was not aggravated therein. The Veteran did not appeal the denial of the claim, and the October 2008 Board decision became final. 38 U.S.C.A. § 7103, 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). In order to reopen a finally denied claim, the record must contain new and material evidence, i.e. evidence that was not previously of record and is related to a fact that was not established at the time of the prior denial. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence received since the October 2008 Board decision includes an October 2010 letter from the Veteran's treating psychiatrist at the White River Junction VA Medical Center (VAMC). The letter contains a medical opinion that the Veteran's schizoaffective disorder existed prior to service and was aggravated during active duty due to several stressors, including the death of the Veteran's mother. This evidence clearly relates to an element of the claim that was previously lacking as it pertains to the aggravation of psychiatric condition during service. The new medical evidence also provides a reasonable possibility of substantiating the claim. It is therefore both new and material and reopening of the claim for entitlement to service connection for an acquired psychiatric disability is granted. Reopened Claim The Veteran contends that service connection is warranted for an acquired psychiatric disorder as it pre-existed his enlistment into active duty service and was aggravated therein. As an initial matter, the Board finds that the record clearly establishes a current disability. Treatment records from various VA facilities document diagnoses of several psychiatric conditions including schizoaffective disorder. The Veteran has undergone consistent treatment for schizoaffective disorder at the White River Junction VAMC for many years and the diagnosis was confirmed upon VA examination in August 2007. Thus, the first element of service connection-a current disability diagnosed as schizoaffective disorder-is demonstrated. The Board must next determine whether there is evidence of in-service incurrence or aggravation of the claimed disability. Service records do not document any specific complaints or treatment for psychiatric complaints, but a January 1993 treatment record includes a referral to the mental health consultation service, presumably for the purposes of a mental status examination (abbreviated in the record as "MSE"). The Veteran was psychiatrically normal upon examination in June 1992 and November 1993. The record also contains evidence that the Veteran's current schizoaffective disorder may have pre-existed service. He consistently reported to his VA physicians that he first received psychiatric treatment at the age of 12 when he was hospitalized for depression and a suicide attempt. The February 1990 report of medical history dating from the Veteran's enlistment also notes a prior history of psychiatric care in 1985, but the Veteran specified that the treatment was for "custody reasons" and not personal reasons. The accompanying February 1990 enlistment examination did not record any psychiatric abnormalities or diagnoses. As no psychiatric defects or disorders were noted at the time of the Veteran's enlistment, the presumption of soundness is for application. See 38 U.S.C.A. § 1110. The Board finds that the presumption of soundness is not rebutted in this case. The lay and medical evidence, consisting of the Veteran's testimony and the findings of his treating VA physicians and the August 2007 VA examiner, universally establish that the Veteran's psychiatric disorder clearly and unmistakably pre-existed active duty service. There is also evidence of aggravation during service; the Veteran was referred for a psychiatric examination while on active duty in January 1993 and two VA physicians have provided medical opinions finding that a pre-existing psychiatric disorder was aggravated during military service. As the record does not contain clear and unmistakable evidence that demonstrates the Veteran's schizoaffective disorder was not aggravated during active service the presumption of soundness is not rebutted. The Board will therefore consider the Veteran's claim as one for direct service connection, rather than one based on aggravation. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As noted above, service records indicate that the Veteran was referred for a mental status examination in June 1993. He also credibly testified that he experienced psychiatric symptoms during active duty related to problems with his commanding officers and the death of his mother. An in-service injury is therefore demonstrated. Additionally, two of the Veteran's VA physicians provided opinions in support of the claim for service connection in March 2006 and October 2010. The opinions were well-supported and were based on an accurate review of the pertinent facts of the case. The Board finds that the two medical opinions in support of the claim outweigh the opinion of the August 2007 VA examiner against the claim, and a nexus between the Veteran's schizoaffective disorder and active duty service is established. As all the elements necessary for service connection are present, the claim for service connection for an acquired psychiatric disorder, currently diagnosed as schizoaffective disorder, is granted. As a final matter, VA has substantially satisfied the duties to notify and assist with respect to the claims to reopen and allow service connection for an acquired psychiatric disability. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to reopen and grant the claim. ORDER New and material evidence having been received, reopening of the claim for entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as schizoaffective disorder, is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs