Citation Nr: 1529419	
Decision Date: 07/09/15    Archive Date: 07/16/15

DOCKET NO.  12-08 078	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for psychogenic stuttering (claimed as speech problems).
 
2. Entitlement to service connection for psychogenic stuttering (claimed as speech problems).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1970 to August 1970, and from April 1972 to April 1974.

This matter comes before the Board of Veteran's Appeals (BVA or Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran submitted a notice of disagreement (NOD) in July 2010; a statement of the case (SOC) was issued in April 2012; and a VA Form 9 (substantive appeal) was received in April 2012.  In November 2012, the Board remanded this claim for additional development.  The Board is satisfied that there has been substantial compliance with the prior remand, regarding the issue of entitlement to service connection for psychogenic stuttering.  See Stegall v. West, 11 Vet.  App. 268 (1998); D'Aries v. Peake, 22 Vet.  App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the Appellant the right to substantial, but not strict, compliance with that order).  In this respect, in response to the November 2012 remand, the Veteran appeared before the undersigned Veterans Law Judge for a Travel Board hearing in June 2013.  See June 2013 hearing transcript.

The Veteran was provided an opportunity to set forth his contentions during the 2013 Travel Board hearing pursuant to the standards espoused in Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Id.  In Bryant, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  In regard to the first duty, the undersigned noted the issues on appeal.  Id.  In regard to the second duty, the duty to suggest the submission of evidence that may have been overlooked, this was also accomplished throughout the hearing and the Veteran was informed of the type of evidence that would be supportive of his claim.

The issue of entitlement to service connection for psychogenic stuttering is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1. A March 2009 rating decision denied the claim for entitlement to service connection for psychogenic stuttering (claimed as speech problems). The Veteran did not complete a substantive appeal to that decision and it is final.

2.  Evidence added to record since the March 2009 rating decision is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim of service connection for psychogenic stuttering.


CONCLUSIONS OF LAW

1. The March 2009 rating decision that denied entitlement to service connection for psychogenic stuttering (claimed as speech problems) is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).

2. Evidence received since the March 2009 rating decision is new and material, and the claim for service connection for psychogenic stuttering is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014).  Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

In light of the Board's favorable action to reopen the Veteran's claim for entitlement to service connection for psychogenic stuttering, and finding new and material evidence sufficient to reopen that claim, the Board finds that no further action is required to comply with the VCAA in regards to the matter concerning the petition to reopen.

II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for Psychogenic Stuttering

The Veteran seeks to reopen his previously denied claim for entitlement to service connection for psychogenic stuttering.

Entitlement to service connection for speech problems was first denied in a March 2009 rating decision.  See March 2009 Rating Decision.  By a rating decision in July 2010, the RO implicitly reopened the Veteran's claim of entitlement to service connection for psychogenic stuttering (claimed as speech problems), but denied the underlying issue on the merits.  See July 2010 rating decision.  

Although the RO determined that new and material evidence had been received sufficient to warrant reopening the Veteran's claim of entitlement to service connection for psychogenic stuttering, the Board must initially determine whether new and material evidence has been submitted regardless of the RO's actions.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  Rating actions from which an appeal is not timely perfected become final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  A final decision cannot be reopened unless new and material evidence is presented or secured.  38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  See Knightly v. Brown, 6 Vet. App. 200 (1994).

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). 

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.  See Kutcherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent); Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The RO denied the Veteran's claim of service connection for psychogenic stuttering in a March 2009 rating decision.  That decision was predicated in part on a finding that the evidence did not indicate that such a condition existed since the Veteran's discharge from service.  The March 2009 rating decision represents the last and final disallowance of the claim of service connection for psychogenic stuttering.  See Evans v. Brown, 9 Vet. App 273, 283-85 (1996).  Accordingly, this claim may only be reopened if new and material evidence is submitted. 

The evidence received since the March 2009 rating decision and relevant to reopening the claim includes medical evidence demonstrating a current diagnosis.  Specifically, the July 2010 VA examination reflects a diagnosis of psychogenic stuttering.  See  July 2010 VA examination.

Presuming its credibility, this newly submitted evidence tends to indicate that the Veteran has a current disorder of psychogenic stuttering.  As a result, the Board finds that this evidence is new and material, because it is neither cumulative nor redundant, relates to an unestablished fact, and raises the possibility of substantiating the claim.  Accordingly, the claim of service connection for psychogenic stuttering is reopened. 38 C.F.R. § 3.156(a).


ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for psychogenic stuttering (claimed as speech problems); to this extent the appeal is granted.

REMAND

The claim for psychogenic stuttering (claimed as speech problems) has been reopened.  The Veteran seeks entitlement to service connection for psychogenic stuttering (claimed as speech problems).

Unfortunately, a remand is required.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014).

The Board notes that the Veteran's entrance examination from June 1970 does not note any stuttering or speech problems.  See June 1970 Report of Medical History.

In July 1970, the Veteran was ordered to undergo a neuropsychiatric evaluation that determined he had a speech defect.  See July 1970 Aptitude Board Report.

The Veteran asserts that his speech defect pre-existed his enlistment, and was aggravated by an in-service assault in July 1970.  See April 2013 correspondence; see also July 2010 VA examination.  Service treatment records from October 1972 indicate a diagnosis of "psychogenic speech problem" with an "onset Aug. 1970 while in basic training in Marine Corps."  See October 1972 Chronological Record of Medical Care.

The Veteran asserts he continues to suffer from a speech impediment.  Post-service treatment records indicate numerous complaints of his dysfluency negatively impacting his life.  See September 2009 Consult Speech Pathology.

The Veteran was afforded a VA examination in July 2010.  The examiner opined that the Veteran's current speech disorder is less likely as not aggravated by the Veteran's complaint of an in-service injury.  Id.  The examiner stated that the Veteran's speech disorder existed prior to service with no evidence of aggravation.  Id.

When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service.  See VAOPGCPREC 3-03.  A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

As noted previously, stuttering, stammering or any type of speech disorder was not noted at the Veteran's June 1970 entrance examination.  The Board finds a remand is necessary to obtain a medical opinion that utilizes the correct evidentiary standard when formulating the opinion.

Accordingly, the case is REMANDED for the following actions:

1. Obtain and associate with the claims file all updated treatment records.

2. Afford the Veteran a VA examination for a disorder manifested by speech dysfluency.  All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.  If the disorder can be diagnosed, please note the diagnosis in the report.

The examiner must review the claims file.  The examiner should assume for purposes of the opinion that the Veteran was assaulted and hit in the head during service.  The examiner should provide the following:

a) Does the evidence clearly and unmistakably show (i.e., it is undebatable) that the Veteran's speech disorder existed prior to service?  The examiner is reminded that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness, even when such is recorded by medical examiners.

b) If the answer to a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing condition was not aggravated by service or that any increase in disability was due to the natural progression of the disorder?  The examiner must consider the Veteran's lay statements regarding his in-service symptoms and the effect of his in-service personal assault.  Whether these statements make sense from a medical point-of-view must be considered and discussed in the opinion. 

c) If the answer to either a) or b) is no, then answer the following:

Is it at least as likely as not (50 percent probability or greater) that the Veteran's disorder(s) had its onset in service or is otherwise attributable to the claimed assault he experienced during service?  Again, the Veteran's lay statements in this regard must be considered.

All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 

3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceeding paragraphs, the Veteran's claim should be readjudicated.

4. If claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

5. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case.

The Veteran 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 2014).



_________________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).



Department of Veterans Affairs