Citation Nr: 1414249	
Decision Date: 04/02/14    Archive Date: 04/11/14

DOCKET NO.  10-40 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a character disorder, passive dependent personality.

2.  Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD)


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Spinnicchia, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 to July 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the claim for service connection for a character disorder, passive dependent personality.   

In a July 2011 rating decision, the RO denied service connection for PTSD.  An August 2011 supplemental statement of the case incorporated the claimed PTSD into the issue on appeal and reopened the previously denied claim.  Later that month the Veteran's representative provided a Statement of Accredited Representative in Appealed Case also including PTSD as part of the issue on appeal.  

However, the Board notes that the RO denied the Veteran's claim for a nervous condition, diagnosed as character disorder, passive dependent personality, in the May 1972 rating decision.  A claim for PTSD, a distinct diagnosis, has not been previously addressed.  In Ephraim v. Brown, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be the same claim when it has not been previously considered." 82 F.3d 399, 401 (Fed.Cir.1996). "Where the veteran brings a claim for benefits based upon a medical diagnosis of a particular disease or injury, the VA must consider whether that precise, medically defined disease or injury is service connected."  Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.Cir.2008).  Claims "based upon distinctly diagnosed disease or injuries" cannot be considered the same "merely because those diseases or injuries involve overlapping symptomatology."  Id. at 1337.  

Accordingly, the issue of service connection for PTSD must be considered on the merits.  Moreover, as the record reveals other current psychiatric diagnoses, the Veteran's claim for service connection for PTSD will be expanded pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4 (2009).  The cover page reflects the change. 

The Board notes that the Veteran was scheduled for a Board hearing in December 2011.  However, in a December 2011 statement, he withdrew his request.  38 C.F.R. § 20.704(e) (2013).

The issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD 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.  VA will notify the Veteran if further action is required on his part.


FINDING OF FACT

1.  A May 1972 rating decision denied service connection for a nervous condition, diagnosed as character disorder, passive dependent personality; the Veteran did not submit a notice of disagreement or new and material evidence within the year following notification of the decision, and the decision is final.  

2.  The evidence submitted since May 1972 is cumulative, does not relate to an unestablished fact, and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for character disorder, passive dependent personality. 


CONCLUSION OF LAW

New and material evidence has not been submitted, and the claim for service connection for character disorder, passive dependent personality is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2013).  Fully compliant VCAA notice was provided in July 2009 and December 2009 letters, issued prior to the respective rating decisions.  The July 2009 letter also informed the Veteran of the need to submit new and material evidence and the basis for the prior denial.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).

Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records, and private treatment records.

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received.  Therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran's claim of entitlement to service connection for a nervous disorder, diagnosed as character disorder, passive dependent personality, was denied in a May 1972 rating decision.  The Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision; therefore, that decision is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2013); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  

Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2002).

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

"New and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (the Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id. 

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

The evidence considered at the time of the February 2006 rating decision included service treatment records, a VA hospital report, a letter from a private physician, and a VA general medical examination.  Service connection for a nervous disorder was denied in that rating decision because the current disability was diagnosed 
as a character disorder, passive dependent personality disorder and such is a constitutional or developmental abnormality for which service connection cannot be established.  

The evidence received since the March 1972 rating decision denial includes VA treatment records and private treatment records, as well as statements from the Veteran.  The medical evidence continues to reflect that the Veteran is diagnosed with a personality disorder.  However, personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection.  38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  

The prior claim was denied because the condition was a constitutional or developmental abnormality.  The additional evidence submitted since the final denial continues to show that he suffers from a constitutional or developmental abnormality.  Accordingly, the evidence does not relate to an unestablished fact nor does it pose any reasonable possibility of substantiating the claim for service connection for a character disorder, passive dependent personality.  Thus, the evidence is not new and material, and the previously denied claim is not reopened. 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine but finds that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

As new and material evidence has not been received, the claim of entitlement to service connection for character disorder, passive dependent personality, is not reopened, and the benefit sought on appeal is denied


REMAND

As noted in the Introduction, the Veteran has also claimed service connection for PTSD.  Although the evidence does not reflect a diagnosis of that disorder, the record does reveal a current diagnosis of substance induced mood disorder, depressed and possible mood disorder.  See Clemons, supra.  The RO has not yet adjudicated the claim for service connection for PTSD or other acquired psychiatric disorder.  Such must be accomplished on remand.

Moreover, the last VA treatment records in the file are dated in January 2011.  As subsequent VA treatment records may provide relevant information concerning his claim for service connection for an acquired psychiatric disorder, updated records should be requested on remand.  

Finally, as the Veteran was treated in service and diagnosed with having a situational stress reaction manifested by anxiety, suspicion, and hostility, and has a current diagnosis of mood disorder, a VA examination is warranted.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Accordingly, the case is REMANDED for the following action:

1. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for a psychiatric disorder.  After securing any necessary release, the RO/AMC should request any relevant records identified that are not duplicates of those already contained in the claims file.  If any requested records are not available, the Veteran should be notified of such.

2. Obtain relevant VA treatment records from the Indianapolis VA Medical Center dating since January 2011.  If no relevant records exist, the claims file should be annotated to reflect such and the Veteran notified of such.

3. After the above development has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the nature of any current psychiatric disorder (other than a personality disorder) and to obtain an opinion as to whether such disorder is possibly related to service.  The claims file must be reviewed in conjunction with the examination.  Any tests deemed necessary should be conducted and the results reported.  Following review of the claims file and examination of the Veteran, the examiner should respond to the following:

a.  Please provide a diagnosis for all psychiatric disorders identified.  

b.  For any psychiatric disorder (other than a personality disorder) that the Veteran is currently diagnosed with, please provide an opinion as to whether it is at least as likely as not (50% probability or greater) that the current psychiatric disorder arose in service or is etiologically related to his military service.  Please explain why or why not.   

4. After the above has been completed to the extent possible and any other development deemed necessary accomplished, the case should again be reviewed.  
If the claim remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).



______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs