Citation Nr: 1600741 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 13-05 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a mental health disorder to include depression, and if so, whether service connection is warranted. 2. Entitlement to service connection for nerve damage of the right upper extremity. 3. Entitlement to an increased rating for residuals of a right wrist injury. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Moshiashwili, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 (depression) and July 2014 (wrist and right upper extremity) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, NY. In May 2015, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issues of nerve damage to right upper extremity and residuals of a wrist injury are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 1980 rating decision, the RO denied service connection for a mental health disorder to include depression. In a September 1980 letter, the RO notified the Veteran of the determination and of his appellate rights, but he did not appeal the determination and the decision became final. 2. The evidence presented since the August 1980 denial raises a reasonable possibility of substantiating the Veteran's claim of service connection for a mental health disorder. 3. The preponderance of the evidence shows that the Veteran's mental health disorder was not present in service or until many years thereafter and is not related to service. CONCLUSIONS OF LAW 1. The August 1980 rating decision that denied the Veteran's claims of entitlement to service connection for a mental health disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a mental health disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for establishing entitlement to service connection for a mental health disorder have not been met. 38 U.S.C.A. §§ 1101, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.301(e), 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2014); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). A letter dated November 2011, issued prior to the initial adjudication of the Veteran's claim for a mental health disorder in October 2012, fully satisfied the duty to notify provisions of the VCAA pertaining to claims for service connection. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The November 2011 letter did not detail the evidence necessary to reopen a previously denied claim. However, as the Board finds that new and material evidence has been received in this case, any error in notice would be harmless. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All relevant facts have been properly developed, and all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's available service treatment records, VA and private treatment records, and lay statements have been obtained. Additionally, the Veteran was provided with a VA examination for his depression in September 2012. The September 2012 VA medical examination is adequate. The VA examiner used her expertise to draw conclusions from the totality of the evidence. Her report discussed the medical and lay evidence of record sufficiently to render an opinion. VA provided the Veteran with a hearing before the undersigned VLJ in May 2015. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not indicated there are any additional records that VA should obtain on his behalf. The Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Analysis - New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. "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. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In this case, the Veteran was denied service connection for a psychiatric disability in an August 1980 rating action, as the evidence did not show the presence of that disability. (The record showed the Veteran was treated for drug abuse and alcohol addiction, for which service connection is not warranted, 38 C.F.R. § 3.301.) The Veteran did not file a notice of disagreement with the August 1980 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the August 1980 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the file since 1980, includes the Veteran's written contentions that he had been treated for a mental health disorder while in service. In November 2012, the Veteran submitted a Notice of Disagreement which contended that treatment records showed that his depression was due to service. In December 2012, the Veteran submitted a letter which contended that his depression was due to how he was treated in service. In the Veteran's May 2015 hearing, he contended that he began experiencing psychiatric symptoms in service. For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the Veteran's lay statements are presumed credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran's statements were not before the RO at the time of the August 1980 denial, and relate to unestablished facts necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening these claims. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Analysis - Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In the Veteran's November 2012 Notice of Disagreement, his representative states: The Veteran brought to my attention that treatment records at Rochester, NY VAOPC stated depression is due to his service. He also stated that he was treated for the depression while in service. In a December 2012 statement, the Veteran describes treatment in service which he believes led to a mental health disorder. In his February 2013 substantive appeal, the Veteran states that he has been treated for depression since 1974-1975, which is after his period of service ended. The Board notes that the record does not confirm the Veteran's statements to his representative, either that the Veteran's treatment records show that the Veteran's depression is due to service or that he was treated for depression in service. The Veteran's medical records show the Veteran's statements that his depression is due to service, but do not contain any statements or opinions from mental health providers linking the Veteran's mental health disorder to service. Additionally, while the records show that the Veteran was treated in service for drug and alcohol abuse, they do not show that he was diagnosed to have, or treated for a mental health disorder in service. No complaint, diagnosis, or treatment for a mental health disorder, including depression, appears in the Veteran's service treatment records. Given that contemporaneous records do not contain what the Veteran contends, and that such records are inherently more probative with respect to their content than current recollections, the Board does not find the Veteran's present contentions to be credible. The Veteran was examined for VA purposes in connection with this claim in September 2012. For reasons not obvious, the RO sought to determine whether the Veteran's in-service treatment for alcohol and drug usage was the cause of his current psychiatric illness. Treatment being neither a disease or injury, and therefore, not a proper foundation to which a current disability could be linked for purposes of establishing entitlement to service connection benefits, whatever the examiner's reply would not result in an award of benefits. As it happens, the examiner concluded the Veteran's in-service treatment did not likely cause the Veteran's current depression. This conclusion obviously does not support the claim. In a December 2012 statement, the Veteran argues his in-service wrist injury was the result of a suicide attempt. However, the service medical record of the incident states that the wrist injury was the result of a fight with another serviceman after drinking. The Board finds that this contemporaneous evidence is more probative than the more recent statements, made almost 40 years after the Veteran's service. Accordingly, it is not a record which supports a finding that there was a suicide attempt in service. Weighing all the evidence, the Board finds that the evidence shows the Veteran's current mental health disorder was not present in service or until many years thereafter, and no competent credible evidence links current psychiatric disability to service. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue of entitlement to service connection for a mental health disorder, to include depression, is denied. ORDER The claim of entitlement to service connection for a mental health disorder to include depression is reopened, and to this extent only, the appeal is granted. Service connection for a mental health disorder, to include depression, is denied. REMAND The Board notes that the record does not show that the Veteran was sent a VCAA letter pertaining to his claims for service connection for upper right extremity nerve damage and for increased rating for the residuals of a wrist injury prior to the initial adjudication of his claim in July 2014. Additionally, the Veteran was diagnosed with arthritis of the right wrist in September 2012 and June 2014 VA examinations. However, no opinion is of record as to whether there is a nexus between the Veteran's right wrist arthritis and his in-service injury. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA) on the issues of entitlement to service connection for nerve damage of the right upper extremity and increased rating for residuals of a right wrist injury. 2. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to the diagnosis and treatment of his nerve damage and residuals of his wrist injury that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment, and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 3. Then, obtain a medical opinion from an individual with appropriate medical expertise as to whether it is at least as likely as not that the Veteran's right wrist arthritis is related to or had its onset in service, including whether it is related to the Veteran's service connected right wrist scar or right wrist injury residuals. A complete rationale for any opinion expressed should be provided. If it is necessary to examine the Veteran to obtain the requested opinions, that should be accomplished. 4. Then readjudicate the appeal. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case 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). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs