Citation Nr: 1517440 Decision Date: 04/23/15 Archive Date: 05/04/15 DOCKET NO. 13-16 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder with psychotic features and schizoid personality disorder. 3. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to May 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed, to include a transcript of the December 2013 Board hearing presided over by the undersigned acting Veteran's Law Judge. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability has been raised by the record, and it is intertwined with the issues on appeal. See e.g., January 2004 Veteran statement; June 2003 VA treatment record. The Agency of Original Jurisdiction (AOJ) has not adjudicated this matter, and the Board therefore refers this matter to the AOJ for appropriate action pending adjudication of the service connection issues on appeal. The issues of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder with psychotic features and schizoid personality disorder, and for a lumbar spine disability, to include degenerative disc disease and arthritis, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a June 2004 rating decision, the RO denied the claim for service connection for a psychiatric disorder, based on the determination that such disability preexisted service and was not aggravated by service. 2. The Veteran did not submit a notice of disagreement for the June 2004 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for service connection for a psychiatric disorder. 3. The additional evidence received since the June 2004 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The June 2004 rating decision, which denied entitlement to service connection for a psychiatric disorder, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003). 2. The additional evidence received since the June 2004 rating decision is new and material to the claim for service connection for a psychiatric disorder, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Because the Board is reopening the previously denied claim for service connection for a psychiatric disorder, discussion concerning compliance with the duties to notify and assist is not necessary. Application to Reopen the Claims for Service Connection Even if a prior decision becomes final, a claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (applying to claims to reopen that are filed after August 29, 2001). Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide a medical examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). If new and material evidence is received within the remainder of the appeal period after a decision, the evidence will be considered as having been received in conjunction with that decision. 38 C.F.R. § 3.156(b). VA is required to determine whether evidence received during the appeal period is new and material. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). If VA finds that new and material evidence is presented during this period, the decision does not become final. Id. In a June 2004 rating decision, the RO denied the claim for service connection for a psychiatric disorder, based on the determination that such disability preexisted service and was not aggravated by service. After the Veteran was notified of the adverse decision, the Veteran did not submit a notice of disagreement with the June 2004 rating decision. Moreover, no new and material evidence was submitted within a year of the June 2004 rating decision. Therefore, the rating decision became final based on the evidence of record at the time. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). At the time of the June 2004 rating decision, the evidence of record included the Veteran's service treatment records, VA treatment records, and the Veteran's statements. The additional evidence presented since the June 2004 rating decision includes a February 2010 VA treatment record, in which the Veteran reported that in service he became depressed because he found out in service that his wife was cheating on him. The Veteran also reported that after service he became depressed because he could not find a job due to his dishonorable discharge, which the record shows was amended to an honorable discharge in May 2000. The Veteran was diagnosed with major depressive disorder with severe psychotic features. The credibility of the Veteran's statements and the diagnosis in the February 2010 VA treatment record is presumed for the purposes of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because evidence showing that the Veteran's current psychiatric disorder did not preexist service and is related to in-service events regarding his marriage or to his dishonorable discharge is pertinent evidence that was absent at the time of the June 2004 rating decision, and such evidence raises a reasonable possibility of substantiating the claim, as such the February 2010 VA treatment record is deemed to be the requisite new and material evidence needed to reopen the claim for service connection for a psychiatric disorder. ORDER Because new and material evidence has been received, the claim of service connection for a psychiatric disorder is reopened. (CONTINUED ON NEXT PAGE) REMAND Rating Decision Not Final Regarding the issue of entitlement to service connection for a lumbar spine disability, the Board finds that the June 2004 rating decision did not become final because new and material evidence was received within one year of the June 2004 rating decision. 38 C.F.R. § 3.156(b). In the June 2004 rating decision, the RO denied service connection for a lumbar spine disability based on the determination that such disability was not occurred in or caused by service. In July 2004, VA received lay statements testifying to the Veteran's complaints of back pain continuing since service. Because such evidence was new and raised a reasonable possibility of substantiating the claim, and such evidence was received within one year of the June 2004 rating decision, the June 2004 rating decision did not become final under 38 C.F.R. § 3.156(b). Service Connection The Veteran contends that he has a lumbar spine disability that had its onset in service and is related to service, to include as a result of a reported in-service spinal tap. The Veteran reports that he has had back pain continuously since service. During the appeal period, the Veteran was afforded a VA examination in March 2004, which did not provide an opinion as to the etiology of a lumbar spine disability. Further, the examiner did not diagnose for arthritis despite noting arthritis in the Veteran's medical history. Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of a lumbar spine disability, to include degenerative disc disease and arthritis. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran also contends that he has a psychiatric disorder that had its onset in service and is related to service, to include as result of his dishonorable discharge and finding out in service that his wife was cheating on him. The Veteran has been diagnosed with major depressive disorder with severe psychotic features during the current appeal period. See February 2010 VA treatment record. The Board notes that, prior to the current appeal period, the Veteran was afforded a VA examination in March 2004 that did not provide an opinion as to etiology of the Veteran's psychiatric disorder and deferred a current Axis I diagnosis. Accordingly, the Veteran should be afforded a VA examination to determine the nature and etiology of a psychiatric disorder. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran reports that he received an in-service spinal tap and was hospitalized in service. See February 2010 VA treatment record. The Veteran also reports in-service mental health treatment. Further, the record shows that the Veteran has claimed and received workers' compensation and Social Security disability benefits for his back. See March 2004 VA examination. As such, attempts should be made to obtain the in-service records pertaining to the Veteran's mental health treatment and hospitalization, and all records pertaining to the Veteran's claims for Social Security disability benefits and workers' compensation benefits. 38 C.F.R. § 3.159(e). Finally, in March 2015, the Veteran sent in a request for a hearing. He has already been afforded a video conference hearing with the Board, so the AMC should clarify whether he seeks an RO hearing before a hearing officer, as is his right. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to see if he seeks an RO hearing with a hearing officer; if so, schedule him for one. 2. Contact the Veteran and request that he provide information as to any outstanding treatment records regarding his lumbar spine and mental health, specifically to include the following: a. Treatment records from Dr. Langman from August 1990 to present. See March 2004 Form 21-4142. b. Records associated with the Veteran's workers' compensation claim in the 1990's. c. Any other relevant private treatment records. The Veteran should be asked to authorize the release of any outstanding pertinent non-VA medical records. 3. Attempt to obtain the inpatient clinical records pertaining to any in-service hospitalization of the Veteran from February 1969 to May 1970. All attempts to fulfill this development should be documented in the claims file. Attempt to obtain all in-service mental health treatment and hospitalization records pertaining to the Veteran's in-service counseling and psychiatric treatment. 4. Request, directly from the Social Security Administration, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 5. Obtain outstanding relevant VA treatment records, to include records from March 2004 to present, and from May 2000 to June 2003. See December 2013 Board hearing transcript at p. 7, 10 (Veteran reported VA treatment from date of his honorable discharge determination). 6. Afterwards, schedule the Veteran for VA orthopedic and psychiatric examinations to determine the nature and etiology of a lumbar spine disability and a psychiatric disorder. Make the claims file available to the examiner for review of the case (to include records on Virtual VA and VBMS). The examiner is asked to note that a complete case file review took place. (a) Ask the examiners to provide opinions as to the nature and diagnosis(es) of the Veteran's (a) lumbar spine disability, and (b) psychiatric disorder. Attention is invited to the lumbar spine diagnoses of degenerative disc disease and arthritis, and to the psychiatric diagnosis of major depressive disorder with psychotic features. (b) Regarding the Veteran's lumbar spine disorder, provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the lumbar spine disorder is etiologically related to service. Regarding arthritis, provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the arthritis manifested in service or within the first post-service year, or is otherwise etiologically related to service. The examiner's attention is invited to the following: a. The December 1969 service treatment record showing complaints of low back pain with radiation. b. The Veteran's reports that he has had back pain since onset in service in basic training and since an in-service spinal tap. See e.g., December 2013 Board hearing transcript at p. 9, 11; January 2004 Veteran statement. c. The lay statements dated in July 2004 attesting to observing the Veteran's complaints of back pain since service. (c) Regarding the Veteran's psychiatric disorder, to include major depressive disorder, provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that such psychiatric disorder is etiologically related to service. If there is psychosis(es), provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that such psychosis(es) manifested in service or within the first post-service year, or is otherwise etiologically related to service. The examiner's attention is invited to the following: d. The April 1970 in-service Certificate of Psychiatric Evaluation, showing symptoms in service, to include depression. e. The February 2010 VA treatment record (Veteran reported symptoms of depression since finding out his wife cheated on him in service and as a result of his dishonorable discharge). See also November 2009 Veteran claim. The examiner must provide a complete rationale for all opinions expressed, in a typewritten report. Please note that a lack of medical documentation in service alone is not sufficient to render lay evidence not credible. 7. Complete the above development and any additional development that is deemed warranted. Then readjudicate the claims on appeal and furnish the Veteran and his representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs