Citation Nr: 1418708 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 12-23 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for major depression. 2. Entitlement to service connection for major depression, claimed as secondary to service-connected hysterectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1977 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In January 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board notes that, even though the RO's October 2011 rating decision did not make a determination as to whether the Veteran had submitted new and material evidence and instead adjudicated the claim on the merits, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the service connection claim. In the decision below, the claim for service connection for major depression is reopened. The issue of entitlement to service connection for major depression is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed May 2003 rating decision, the RO denied service connection for personality disorder and major depressive disorder. 2. A claim to reopen service connection for major depression was received in May 2011. 3. Evidence received since the May 2003 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The May 2003 rating decision which denied service connection for major depressive disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen service connection for major depression. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2013). Further discussion of the duties to notify and assist the Veteran with this claim is unnecessary because the claim is being reopened. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Claim to Reopen Service Connection for Major Depression The RO previously denied a claim for service connection for major depressive disorder on a direct basis. The Veteran has since presented a new theory of entitlement of service connection for major depression secondary to service-connected hysterectomy. The Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Roebuck v. Nicholson, 20 Vet App 307 (2006). Therefore, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. The RO previously considered and denied a claim for service connection for personality disorder and major depressive disorder in a May 2003 rating decision. The decision found that depressed mood was secondary to pattern of living and that a mental disorder was not related to the Veteran's period of service. The Veteran did not submit a timely notice of disagreement (NOD) to the May 2003 rating decision. The Veteran did not appeal the RO's decision, and she did not submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the decision became final one year later. In May 2011, the Veteran filed a claim to reopen service connection for major depression. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. For claims filed on or after August 29, 2001, as in this case, new evidence means existing evidence not previously submitted to agency decisionmakers. 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. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010) the Court stated that the phrase "raises a reasonable possibility of substantiating the claim" is not a third part of the new and material standard. The Court indicated the phrase must be viewed as "enabling" reopening rather than "precluding" it. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. The evidence of record at the time of the May 2003 rating decision included service personnel records, a report of VA examination dated in May 2003, VA outpatient treatment records and private treatment records. The VA examination report dated in May 2003 reflects that a VA examiner diagnosed major depressive disorder, recurrent, in full remission. The examiner opined that depression was believed to be related to the birth of the Veteran's daughter and was not related to service. The evidence received since the May 2003 rating decision includes VA outpatient treatment records, a report of a VA examination dated in October 2011, and the testimony presented by the Veteran at a Board hearing in January 2014. VA medical records reflect current treatment for depression. At the Board hearing, the Veteran testified that she underwent a hysterectomy in 1984. The Veteran testified that she experienced issues with depression after the hysterectomy. The Board finds that new and material evidence has been received to reopen the claim for service connection for major depression. The evidence received since the prior final denial in May 2003 is new, as it was not previously of record. The evidence is also material, as it relates to an unestablished fact necessary to substantiate the claim. The claim was previously denied due to a lack of evidence of a relationship between major depressive disorder and service. The evidence submitted since the prior final denial pertains to the causal relationship between major depression and a service-connected disability. When considered with the evidence previously of record, the new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board concludes that new and material evidence has been received to reopen the claim for service connection for major depression. Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section below, additional development is required for adjudication of the service connection claim. ORDER New and material evidence having been received, the claim for service connection for major depression is reopened. To that extent only, the claim is allowed. REMAND The Veteran asserts that service-connected hysterectomy either caused or aggravated major depression. Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Veteran had a VA examination in October 2011. The VA examiner diagnosed depression and opined that the claimed condition is less likely than not proximately due to, or the result of, the Veteran's service-connected hysterectomy. The VA examiner did not address whether the Veteran's depression was aggravated by the service-connected hysterectomy. See 38 C.F.R. § 3.310 (2013). The Court has held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. See Allen at 449. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a supplemental opinion should be obtained to address the issue of aggravation. Accordingly, the case is REMANDED for the following action: 1. The claims file, including a copy of this remand, should be forwarded to the examiner who conducted the October 2011 examination for preparation of a supplemental opinion addressing the issue of aggravation. The claims file must be made available to the examiner, and the examiner should indicate in the report whether or not the claims file was reviewed. After a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's major depression is aggravated (permanently worsened) by service-connected hysterectomy. 2. If the October 2011 VA examiner is not available, then the Veteran should be scheduled for a new VA examination in the appropriate specialty to determine whether her major depression is permanently aggravated by service-connected hysterectomy. 3. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim of service connection for major depression. If the benefit sought on appeal is not granted, the appellant and her representative should be furnished with a supplemental statement of the case and 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. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs