Citation Nr: 1400321	
Decision Date: 01/07/14    Archive Date: 01/23/14

DOCKET NO.  09-36 664	)	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 for service connection for an acquired psychiatric disorder, and if so, whether service connection is warranted.


REPRESENTATION

Appellant represented by:	Marine Corps League


WITNESSES AT HEARING ON APPEAL

The Veteran and his sister



ATTORNEY FOR THE BOARD

L. Willis, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Navy from September 1972 to July 1974.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In June 2013, the Veteran and his sister testified before the undersigned Veterans Law Judge at the Cleveland RO.  A transcript of the proceeding has been associated with the claims file.  

The issue of service connection for an acquired 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.  In an April 1994 rating decision, the RO denied a claim for service connection for a nervous condition because the personality disorder diagnosed during service was not a disability recognized by VA for compensation purposes and because the Veteran's drug abuse constituted willful misconduct.  

2.  The evidence received since the prior denial of service connection for a nervous condition was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim.  



CONCLUSIONS OF LAW

1.  The April 1994 rating decision is final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.110 (2013).

2.  The evidence received since the April 1994 rating decision is new and material and the claim for service connection for an acquired psychiatric disorder, is considered reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

In regards to the claim to reopen, the Board finds that new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder.  Therefore, no further development is required with respect to this aspect of the Veteran's appeal as any deficiency has been rendered moot.

II.  Application to Reopen Based on New and Material Evidence

The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection.  New evidence means existing evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156(a).  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.  

Additionally, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low evidentiary threshold has been 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 consider whether the evidence could reasonably substantiate the claim, were the claim to be reopened.  Shade, 24 Vet. App. at 118.  

Here, in October 1993, the Veteran filed a claim for service connection for a nervous condition.  In an April 1994 rating decision, the RO denied the claim due to the Veteran's history of drug abuse and because the personality disorder diagnosed during service was not a VA recognized disability for compensation purposes.  Within a year of the April 1994 rating decision -in June 1994 - the Veteran submitted VA medical records.  These records were not new and material as they provided references to prior drug abuse, current family and marital difficulties and difficulties related to a cousin of his wife who was shot to death.  The records did not show that the Veteran had a current psychiatric disability not of willful misconduct origin that began in or was potentially related to service.  As a result, new and material evidence was not received within one year of the rating decision and, as the Veteran did not submit a notice of disagreement, the decision became final.  

Most recently in April 2008, the Veteran filed a claim for service connection for psychosis and depression.  In a July 2008 rating decision, the RO denied the claim for service connection because new and material evidence was not received which showed that the Veteran suffered from a psychiatric disorder that was not drug induced.  Since the April 1994 rating decision, evidence of record includes: (1) December 2007 VA outpatient records diagnosing depression with psychotic features; (2) January and February 2008 VA outpatient records diagnosing dysthymia; (3) May 2008 VA outpatient records diagnosing major depressive disorder with psychotic features/ rule out schizoaffective disorder; (4) December 2007 to June 2013 VA outpatient/inpatient records; and (5) a June 2013 hearing transcript.  As this evidence had not been previously reviewed by agency makers, the Board finds that it is new evidence under 38 C.F.R. § 3.156(a).  

Moreover, the Board finds that the evidence is not only new but also material.  The Veteran testified that he had symptoms in service, including psychotic symptoms, that continued thereafter.  In addition, in June 2013, a VA psychiatrist indicated the Veteran had "[p]rob." posttraumatic stress disorder associated with the traumatic experience while in a psychotic break of being beaten by the police and having a physical altercation with mental health personnel as he was restrained and secluded on the psychiatric unit.  This evidence and testimony was not of record at the time of the last prior denial and relates to unestablished facts necessary to substantiate the claim.  It also raises a reasonable possibility of substantiating the claim.  

It is noted that the Veteran submitted copies of service treatment records in June 2013.  As these are duplicate copies of service treatment records which were already of record, 38 C.F.R. § 3.156(c) is not applicable to his claim.  Moreover, the service personnel records the Veteran submitted at the same time are not relevant.  

Accordingly, the Veteran's claim for service connection for an acquired psychiatric disorder is reopened.  To that extent only, the appeal is allowed. 


ORDER

New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for an acquired psychiatric disorder, having been submitted, the claim to reopen is granted.  


REMAND

Having reopened the claim, the Board finds that a new VA examination is warranted under Shade.  The Veteran has submitted evidence that he suffers from a psychiatric disorder which he contends is related to service.  Therefore, the Veteran has submitted evidence, when considered with the old evidence, triggers the Secretary's duty to assist by providing a medical opinion.  

The evidence of record further indicates that the Veteran has been receiving Social Security Administration (SSA) disability benefits since 2009; however, the records have not yet been obtained.  See February 2012 Cleveland Domiciliary mental health note.  The Court has held that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination.  See Hayes v. Brown, 9 Vet. App. 67, 74 (1996).   

In addition, while the RO requested the inpatient clinical records pertaining to the Veteran's hospitalizations in service in 1974, and received a negative reply, the Veteran was not informed of such.  Moreover, while pages from the service personnel records were requested, in light of the Veteran's assertions, the complete service personnel record should be obtained on remand.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Social Security Administration and obtain a complete copy of any adjudication and the records, including medical records, underlying the adjudication for disability benefits.

2.  Again request the clinical (psychiatric) inpatient records pertaining to the Veteran's hospitalization at the Naval Regional Medical Center in Portsmouth, Virginia, in May and June of 1974.

3.  Request the Veteran's complete service personnel records.

4.  Regarding steps 1 to 3, if, after continued efforts to obtain Federal records the AMC concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).  The Veteran must then be given an opportunity to respond.


Obtain any relevant VA treatment records pertaining to the Veteran that date from June 2013.  

5.  After the completion of the above, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of all acquired psychiatric disorders present during the period of time covered by this claim.  The claims file must be made available to and reviewed by the examiner in association with the examination.  The VA examination report should indicate that this has been accomplished.  All necessary studies and tests should be conducted.

With respect to any acquired psychiatric disorders currently present or present at any time during the pendency of this claim, including but not limited to depression with psychotic features, major depressive disorder, and dysthymia, and any disorders found on examination, the examiner should provide an opinion with respect to each disorder as to whether it is at least as likely as not (50 percent or better probability) that the disorder is etiologically related to the Veteran's active service.  The examiner's attention is directed to the diagnosis of "[p]rob." posttraumatic stress disorder.  See VA treatment record dated in June 2013.  

A complete rationale must be provided for the opinion.  

6.  Ensure the development outlined above has been accomplished, that the examination report is adequate, and then arrange for any additional development indicated.  Then readjudicate the claim on appeal.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise 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. 2013).




______________________________________________
S.S. Toth
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs