Citation Nr: 1343262 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-27 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for a nervous condition. 2. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Brian Held, Alpha Disability Advocates ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active air service from March 1966 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the petition to reopen a claim for service connection for a nervous condition. Jurisdiction over the case was subsequently returned to the RO in Hartford, Connecticut. Although the RO determined the Veteran did submit new and material evidence sufficient to reopen his claim, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). The Board has reviewed the physical claims file and the Virtual VA electronic claims file. The issue on appeal was styled in a December 1980 rating decision as entitlement to service connection for a nervous condition. The Board has restyled the issue to better reflect the evidence on file and the Veteran's stated interests. The reopened claim of service connection for a psychiatric disorder 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. A petition to reopen the claim was denied by the RO in a September 1985 rating decision; the Veteran was notified of his appellate rights and did not appeal; the September 1985 rating decision comprises the last final denial regarding this issue on any basis prior to the present attempt to reopen the claim. 2. Evidence associated with the record since the September 1985 RO decision includes evidence that is new and material. CONCLUSIONS OF LAW 1. The September 1985 rating decision which denied service connection for a nervous condition is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence was received to reopen a claim of entitlement to service connection for a nervous condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice informs claimants of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must provide this notice prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) the existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, VA must notify claimants that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded and explain how they will be assigned. Id. at 486. In claims to reopen based on new and material evidence, VA must notify claimants of the evidence and information necessary (1) to reopen the claim, and (2) to establish entitlement to the underlying claim for the benefit sought. To satisfy this requirement, VA must send claimants a notice letter that identifies the bases for the prior denial and describes the evidence that would be necessary to substantiate service-connection elements that were previously found insufficient. Kent v. Nicholson, 20 Vet. App. 1 (2006). As an initial matter, the Board has reopened the Veteran's claim of entitlement to service connection for a nervous condition; therefore, no additional discussion of VA's duty to notify and assist is necessary regarding the issue. However, as discussed in the remand below, additional evidentiary development will be completed with respect to the reopened claim. A claim that is disallowed by an RO or the Board and not appealed within the required period is considered final and cannot be reopened unless new or material evidence is presented regarding the claim. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1100, 20.1104 (2013). Evidence is new if it was not previously submitted to agency decision-makers and material if, by itself or in consideration with prior record evidence, it relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence must not be cumulative or redundant of the record evidence at the time of the claim's prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The threshold for reopening a claim is low and does not require the claimant to present new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 115-119 (2010). The credibility, but not the weight, of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran filed an initial claim of entitlement to service connection for a nervous condition in October 1980 and the RO denied this claim in December 1980 because the Veteran's diagnosed disability was a personality disorder and not ratable. He did not appeal the decision and it became final. 38 C.F.R. §§ 3.156(b), 20.302. In August 1985, the Veteran filed a petition to reopen his claim and the RO denied this claim in September 1985, citing a lack of new and material evidence. He did not appeal the decision and it became final. 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the Board considers evidence submitted from September 10, 1985, to the present. See Evans v. Brown, 9 Vet. App. 273, 287 (1996) (holding that, when evaluating a new and material evidence claim, the Board will consider only evidence added to the record after the last final denial of the prior claim either on the merits or on a prior petition to reopen the claim). Relevant medical evidence at the time of the September 1985 rating decision included: service treatment records (STRs) that show the Veteran's induction examination was negative for his claimed condition; that in March 1967 he was diagnosed with a chronic, mild emotionally unstable personality, passive-dependent type, manifested by continuous thoughts about deceased parents, homesickness, and occasional feelings of anxiety; that in August 1968 he was sent to a hospital for a psychiatric evaluation; and that in September 1968 his diagnosis of a passive-dependent personality with a character and behavior disorder was confirmed; as well as a statement from Dr. N, who saw the Veteran once in late 1968 for anxiety reaction; and private treatment records from St. Mary's Hospital, which reveal that the Veteran was hospitalized from April to August of 1979, diagnosed with anxiety neurosis, and reported having always been a nervous person. Relevant lay evidence of record at the time of the September 1985 rating decision included: a statement from Ms. D that the Veteran changed in January 1969; a statement from a pastor that he had seen the Veteran several times over the prior three years for depression; and a statement from the Veteran's wife that he began acting differently and having memory loss in the Spring of 1971. Relevant medical evidence received since the September 1985 rating decision includes: VA treatment notes from April 2008 to August 2012 that show the Veteran was diagnosed with depression, not otherwise specified (NOS), and that anxiety, NOS, was ruled out in December 2011; a February 2010 letter from a private primary care provider, Dr. J, stating that the Veteran was under his care for reactive depression; a November 2011 letter from a VA psychiatrist, Dr. C, stating that the Veteran's diagnosis is depressive disorder, NOS; and private treatment records from St. Mary's Hospital that show the Veteran was hospitalized in May 2011 and given a secondary diagnosis of depression Relevant lay evidence received since the September 1985 rating decision includes: the Veteran's December 2011 statement that he suffers from daily depression, which did not start until he was in the military, and that he was discharged from the military due to his depression; the Veteran's statement in a June 2012 VA treatment note that he blamed the military for his mental health problems and felt sad when he thought about his breakdown that occurred while he was in the military. The Board finds the Veteran has presented new and material evidence sufficient to reopen his prior claim for service connection for a nervous condition. VA treatment notes wherein the Veteran was assessed with depression, NOS, the letter from the VA psychiatrist, Dr. C, indicating that the Veteran has a diagnosis of depressive disorder, NOS, and Dr. V's secondary diagnosis of depression are new, as they were not of record when the September 1985 rating decision was issued, and material, as the Veteran's prior claim was denied in part because he had been diagnosed with a personality disorder, which may not be service-connected. Further, the VA treatment notes and Dr. C's letter are not cumulative or redundant of evidence already of record and both raise a reasonable possibility of substantiating the Veteran's prior claim. Accordingly, the claim to reopen the Veteran's prior claim for entitlement to service connection for a nervous condition is granted. ORDER New and material evidence was received to reopen the claim of entitlement to service connection for a nervous condition. REMAND The Veteran was scheduled for a VA compensation examination in May 2012 and he either failed to report or the RO had difficulty notifying him of the time and place of the examination. While the Veteran has maintained the same address throughout the period on appeal, it is unclear whether he actually received notice of the examination appointment. A VA compensation examination request form indicates that the May 2012 examination was cancelled in June 2012 and that a notification was undelivered. The type of notification and the intended recipient are not specified and the record does not contain evidence confirming that the Veteran received notification of the appointment via letter or a phone call. In addition, it is unclear from the record whether the Veteran still carries his in-service personality disorder diagnosis. A personality disorder is considered a congenital or developmental defect and not a disease or injury under the applicable legislation. 38 C.F.R. § 3.303(c). A VA General Counsel Precedent Opinion has held that service connection may not be granted for defects that are congenital, developmental, or familial in origin. VAOGCPREC 82-90 (July 18, 1990). Given these circumstances, the Board requests that the Veteran be scheduled for a new VA examination which addresses the nature and etiology of any current psychiatric diagnosis. The current record does not contain sufficient medical evidence to review the appeal. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, for the following action: 1. First, undertake appropriate development to obtain any outstanding, pertinent medical records, to include from VA, Dr. J, M.D., and Dr. V, M.D. 2. Then, provide the Veteran with a VA examination to determine the nature and etiology of any current psychiatric disorder to include depression. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file. The examiner should review the claims file and perform all indicated studies. (a) Whether an acquired psychiatric disability clearly and unmistakably existed prior to active service. (b) If it is determined that a specific psychiatric disability for which VA compensation may be awarded (i.e., not a personality disorder) clearly and unmistakably preexisted active service an opinion should be provided as to whether there is clear and unmistakable evidence, either that (i) there was no increase in disability in service or, (ii) any increase in disability in service was due to the natural progression of the condition; (c) If it is determined that an acquired psychiatric disability did not preexist service, is it at least as likely as not that an acquired psychiatric disorder was incurred in service or is otherwise etiologically related to the Veteran's service; All indicated tests and studies are to be performed. Please provide the basis for any diagnosis and a complete medical rationale for the opinion. The Veteran's service treatment records, to include a summary of his hospital stay and medical board reports, should be acknowledged, as should his statements of ongoing symptomatology since service. 3. The RO or AMC should undertake any additional development it deems warranted. 4. Then, the RO or AMC should readjudicate the claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should then be returned to the Board for further appellate action. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs