Citation Nr: 1616293 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 10-15 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder other than posttraumatic stress disorder. 2. Entitlement to service connection for posttraumatic stress disorder. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from November 1970 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Following that hearing, the Board remanded the case for further development in February 2013. The case has since been returned to the Board. The RO indicated that the claims for service connection for an acquired psychiatric disorder and a low back disorder included the threshold question of whether new and material evidence had been submitted, as there was a prior denial of the claims in March 1997. After that rating decision, however, the RO received clinical service treatment records in March 2013. These service treatment records include treatment for the Veteran's low back, which is clearly pertinent to his claim for service connection for a low back disorder. Accordingly, 38 C.F.R. § 3.156(c) applies, and that claim will be reconsidered on the merits. However, the additional service treatment records are not relevant to the claim for service connection an acquired psychiatric disorder, and therefore, the threshold question of whether new and material evidence has been submitted must still be addressed for that claim. The Board has also recharacterized the acquired psychiatric disorder/PTSD claim on appeal by bifurcating it into two separate issues, specifically: (1) whether new and material evidence has been submitted to reopen service connection for an acquired psychiatric disorder other than PTSD, and (2) service connection for PTSD only. The Board concludes that bifurcating the acquired psychiatric disorder/PTSD claim into two separate issues for independent adjudication is the most proper way of handling the Veteran's appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces). In this regard, in an earlier March 1997 rating decision, the RO denied the Veteran service connection for a "nervous condition." As discussed below, the RO notified the Veteran of that decisions and apprised him of his procedural and appellate rights, but he did not perfect an appeal after the issuance of a statement of the case. There was also no evidence received within one year of the issuance of the decision. Therefore, the March 1997 rating decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2015). Notably, however, the RO did not adjudicate the issue of service connection for PTSD in the March 1997 rating decision. The Board emphasizes PTSD has unique evidentiary and regulatory requirements. See 38 C.F.R. § 3.304(f)(2015). Subsequently, in August 2008, the Veteran filed a claim for service connection for PTSD and anxiety. The Federal Circuit Court has held that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (a newly diagnosed psychiatric disorder (e.g., PTSD), even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). Therefore, the Board has determined that a new and material evidence analysis is proper for the acquired psychiatric disorder ("nervous condition" issue), as it was previously adjudicated by the RO; whereas a de novo service connection analysis is proper for the PTSD issue on appeal. See also Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus VA's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries," or whether it is evidence tending to substantiate an element of the previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Here, PTSD was not previously adjudicated in any way by the RO; therefore, it constitutes a new and distinct claim. In addition to the paper claims file, there are Virtual VA and VBMS paperless files associated with the case. The underlying merits of the claim for service connection for an acquired psychiatric disorder, as well as the issues of entitlement to service connection for PTSD and a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The claim for service connection for an acquired psychiatric disorder was previously considered and denied by the RO in a March 1997 rating decision. The Veteran was informed of the decision and of his appellate rights, but he did not perfect an appeal following the RO's issuance of a May 1997 statement of the case or June 1997 supplemental statement of the case. 2. The evidence received since the March 1997 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The March 1997 rating decision denying service connection for a nervous condition is final. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (1996). 2. The evidence received since the March 1997 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a March 1997 rating decision, the RO previously considered and denied the Veteran's October 1996 claim for service connection for a nervous condition. The RO notified the Veteran of the March 1997 rating decision later that month, and he did initiate an appeal with a May 1997 notice of disagreement. The RO responded with a May 1997 statement of the case and a June 1997 supplemental statement of the case, but the Veteran did not file any substantive appeal. Therefore, the March 1997 rating decision is final. 38 U.S.C.A. § 7105(d)(3) (West 2014); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2015). In August 2008, the Veteran filed an application to reopen his claim for service connection for an acquired psychiatric disorder. The RO denied that claim on the merits in the December 2008 rating decision on appeal, citing the lack of a verified stressor to support a claim of entitlement to service connection for PTSD. Nevertheless, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In the March 1997 rating decision, the RO indicated that the Veteran had received private treatment for a nervous disorder in April 1970. It was also noted that his service treatment records showed that he was seen for headaches and chest pain in November 1970 and that the impression was anxiety. The RO further observed that VA treatment records dated in September 1996 documented his complaints of being nervous, but noted that there was no diagnosis made at that time. The RO concluded that the Veteran's nervous condition existed prior to service and was not aggravated beyond its natural progression. Since the March 1997 rating decision, the Veteran has submitted more recent VA treatment records, Social Security Administration records, and his lay statements including his July 2012 testimony. The VA treatment records include a June 1997 assessment for anxiety, a September 1997 diagnosis for a panic disorder without agoraphobia, a July 2007 treatment for an anxiety disorder not otherwise specified, and a June 2008 assessment for a panic disorder and explosive disorder. AS such, the evidence reflects a current diagnosis. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for an acquired psychiatric disorder. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the claim can be addressed. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened, and to this extent only, the appeal is granted. REMAND While the Veteran did report a history of nervous trouble at his January 1970 induction examination, the induction examination itself reflects a normal psychiatric system. The Veteran was also treated for anxiety while in service in November 1970. Moreover, the Veteran is still being treated for several psychiatric diagnoses as noted above. Nevertheless, the evidence does not include a medical opinion addressing whether the Veteran had a preexisting disorder, and if so, whether the disorder was aggravated by his military service. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any acquired psychiatric disorder that may be present. Similarly, the January 1970 induction examination documented the Veteran as having a normal spine, despite his reported medical history of recurrent back pain. The service treatment records recovered on remand also reflect an erroneous induction board based on a diagnosis of spondylosis. However, there is no medical opinion addressing whether the Veteran had a preexisting disorder, and if so, whether the disorder was aggravated by his military service. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any low back disorder that may be present. Accordingly, the case is REMANDED for the following action: 1. The AOJ should also secure any outstanding VA treatment records. This request should specifically include records from the Huntington VAMC for treatment since February 2013. 2. After obtaining any outstanding VA treatment records, the AOJ should afford the Veteran a VA examination for the purpose of determining the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service records, post-service medical records, and lay assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified other than PTSD, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's military service from November 1970 to December 1970. In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. If so, the examiner should state whether the acquired psychiatric disorder increased in severity during service. If so, the examiner should indicate whether the increase in severity was consistent with the natural progression of the disorder or whether the increase represented a permanent worsening or "aggravation" of the disorder beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. In rendering this opinion, the examiner should discuss the April 1970 pre-service notation for treatment of a nervous disorder and November 1970 in-service impression of anxiety. If any acquired psychiatric disorder other than PTSD did not clearly and unmistakably preexist the Veteran's service, the examiner should state whether it is at least as likely as not that the disorder manifested during service or is otherwise causally or etiologically related thereto, to include any symptomatology therein. In rendering this opinion, the examiner should address on the service treatment records showing a November 1970 impression of anxiety, as well as the VA treatment records showing a June 1997 assessment for anxiety, a September 1997 diagnosis for a panic disorder without agoraphobia, a July 2007 assessment for an anxiety disorder not otherwise specified, and June 2008 assessment for a panic disorder and explosive disorder. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor, the examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and lay assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any current diagnoses of a low back disorder. For each diagnosis identified, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's service from November 1970 to December 1970. In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. If so, the examiner should state whether the lower back disorder increased in severity during service. If so, the examiner should indicate whether the increase in severity was consistent with the natural progression of the disorder or whether the increase represented a permanent worsening or "aggravation" of the disorder beyond its natural progression. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. In rendering this opinion, the examiner should discuss the November 1970 separation examination and the December 1970 in-service assessment of spondylolysis. If the low back disorder did not clearly and unmistakably preexist the Veteran's service, the examiner should state whether it is at least as likely as not that the disorder manifested during service or is otherwise causally or etiologically related thereto, to include any symptomatology or injury therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, 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 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs